Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except: (a) the Obligations; (b) Senior Notes in an aggregate principal amount not to exceed $4,350,000,000; (c) Indebtedness of any Subsidiary of Borrower to Borrower or any other such Subsidiary or of Borrower to any of its Subsidiaries; provided that (i) all such Indebtedness, if owed to a Credit Party, shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral Document, (ii) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of a subordination agreement with respect to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness and (iii) in respect of any Indebtedness owing by a Subsidiary that is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d); (d) Indebtedness incurred by Borrower or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) or from guaranties or letters of credit, surety bonds, performance bonds or similar obligations securing the performance of Borrower or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or any of its Subsidiaries; (e) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal or similar obligations incurred in the ordinary course of business; (f) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accounts; (g) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees of and licensees to and of Borrower and its Subsidiaries;
Appears in 9 contracts
Sources: Credit and Guaranty Agreement (Valeant Pharmaceuticals International, Inc.), Credit and Guaranty Agreement (Valeant Pharmaceuticals International, Inc.), Credit and Guaranty Agreement (Valeant Pharmaceuticals International, Inc.)
Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectlyIncur, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect permit to exist any Indebtedness, except:
(a) (i) Indebtedness existing or committed on the ObligationsClosing Date (provided, that any such Indebtedness that is (x) not intercompany Indebtedness and (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) Senior Notes in an aggregate principal amount not (i) Indebtedness created hereunder (including pursuant to exceed $4,350,000,000Section 2.21 (whether prior to, on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date)) and under the other Loan Documents, and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent with past practice or industry practices;
(e) Indebtedness of the Borrower to Holdings or any Subsidiary and of any Subsidiary to Holdings, the Borrower or any other such Subsidiary or of Borrower to any of its SubsidiariesSubsidiary; provided provided, that (i) all such Indebtedness, if owed to a Credit Party, shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral Document, (ii) all such Indebtedness owing by a Credit Party to a of any Subsidiary that is not a Credit Subsidiary Loan Party owing to the Loan Parties incurred pursuant to this Section 6.01(e) shall be unsecured 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 payment Loan Obligations under this Agreement on subordination terms described in full of the Obligations pursuant to the terms of a subordination agreement with respect to such Indebtedness intercompany note substantially in the form of Exhibit J-2 among I hereto or on other subordination terms reasonably satisfactory to the Credit Parties Administrative Agent and such Subsidiaries party to such the Borrower;
(f) Indebtedness and (iii) in respect of any Indebtedness owing by a Subsidiary that is not a Credit 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 or consistent with past practice or industry practices, including those incurred to a Credit Partysecure health, such Indebtedness is permitted as an Investment under safety and environmental obligations in the proviso to Section 6.6(d)ordinary course of business or consistent with past practice or industry practices;
(dg) Indebtedness incurred by Borrower or any of its Subsidiaries arising from agreements providing for indemnificationthe honoring by a bank or other financial institution of a check, adjustment of purchase price draft or similar obligations (including Indebtedness consisting instrument drawn against insufficient funds in the ordinary course of the deferred purchase price of property acquired in a Permitted Acquisition) business or from guaranties or letters of credit, surety bonds, performance bonds or similar obligations securing the performance of Borrower or any such Subsidiary pursuant to such agreementsother cash management services, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or any of its Subsidiaries;
(e) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal or similar obligations each case incurred in the ordinary course of business;
(fi) Indebtedness of a Subsidiary acquired after the Closing Date or a person merged or consolidated with the Borrower or any Subsidiary after the Closing Date and Indebtedness otherwise incurred or assumed by the Borrower or any Subsidiary in connection with the acquisition of assets or Equity Interests (including a Permitted Business Acquisition), where such acquisition, merger or consolidation is not prohibited by this Agreement; provided, that, (w) in the case of any such Indebtedness secured by Liens on Collateral that are Other First Liens, the Net First Lien Leverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger or consolidation, the incurrence or assumption of such Indebtedness and the use of proceeds thereof and any related transactions is (I) not greater than 3.20 to 1.00 or (II) not greater than the Net First Lien Leverage Ratio in effect immediately prior thereto, (x) in the case of any such Indebtedness secured by Liens on Collateral that are Junior Liens, the Net Secured Leverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger or consolidation, the incurrence or assumption of such Indebtedness and the use of proceeds thereof and any related transactions is (I) not greater than 3.60 to 1.00 or (II) not greater than the Net Secured Leverage Ratio in effect immediately prior thereto, (y) in the case of any other such Indebtedness, the Interest Coverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger or consolidation, the incurrence or assumption of such Indebtedness and the use of proceeds thereof and any related transactions is (I) not less than 2.00 to 1.00 or (II) not less than the Interest Coverage Ratio in effect immediately prior thereto and (z) in the case of any such Indebtedness incurred under this clause (h) by a Subsidiary other than a Subsidiary Loan Party, the aggregate outstanding principal amount of such Indebtedness immediately after giving effect to such acquisition, merger or consolidation, the incurrence of such Indebtedness and the use of proceeds thereof and any related transactions shall not exceed the greater of $350,000,000 and 0.12 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; provided, further, that the incurrence (but not assumption) of term loan Indebtedness pursuant to clause (i)(w) above shall be subject to the last paragraph of Section 6.02; and (ii) any Permitted Refinancing Indebtedness incurred to Refinance any such Indebtedness;
(i) (x) Capitalized Lease Obligations, mortgage financings and other Indebtedness incurred by the Borrower or any Subsidiary prior to or within 270 days after the acquisition, lease, construction, repair, replacement or improvement of the respective property (real or personal, and whether through the direct purchase of property or the Equity Interest of any person owning such property) permitted under this Agreement in order to finance such acquisition, lease, construction, repair, replacement or improvement, in an aggregate principal amount that immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(i)(x), would not exceed the greater of $250,000,000 and 0.075 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, and (y) any Permitted Refinancing Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accountsthereof;
(gi) guaranties Capitalized Lease Obligations and any other Indebtedness incurred by the Borrower or any Subsidiary arising from any Sale and Lease-Back Transaction that is permitted under Section 6.03, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(i) other Indebtedness of the Borrower or any Subsidiary, in an aggregate principal amount that, immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(k), would not exceed the greater of $350,000,000 and 0.12 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(l) Indebtedness of the Borrower or any Subsidiaries in an aggregate outstanding principal amount not greater than 100% of the net cash proceeds received by the Borrower after the Closing Date from (x) the issuance or sale of its Qualified Equity Interests or (y) a contribution to its common equity with the net cash proceeds from the issuance and sale by Holdings or a Parent Entity of its Qualified Equity Interests or a contribution to its common equity (in each case of (x) and (y), other than proceeds from the sale of Equity Interests to, or contributions from, the Borrower or any of its Subsidiaries), to the extent such net cash proceeds do not constitute Excluded Contributions;
(m) Guarantees (i) by Holdings, the Borrower or any Subsidiary Loan Party of any Indebtedness of the Borrower or any Subsidiary Loan Party permitted to be incurred under this Agreement, (ii) by the Borrower or any Subsidiary Loan Party of Indebtedness otherwise permitted hereunder of any Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(v)), (iii) by any Subsidiary that is not a Subsidiary Loan Party of Indebtedness of another Subsidiary that is not a Subsidiary Loan Party, and (iv) by the Borrower of Indebtedness of Subsidiaries that are not Subsidiary Loan Parties incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(t) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(v)); provided, that Guarantees by the Borrower or any Subsidiary Loan Party under this Section 6.01(m) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Loan Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(n) Indebtedness arising from agreements of the Borrower or any Subsidiary providing for indemnification, adjustment of purchase or acquisition price or similar obligations (including earn-outs), in each case, incurred or assumed in connection with the 2015 Transactions, the ADT Transactions, any Permitted Business Acquisition, other Investments or the disposition of any business, assets or a Subsidiary not prohibited by this Agreement;
(o) Indebtedness in respect of letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations and trade letters of credit (other than obligations in respect of other Indebtedness) in the ordinary course of business or consistent with past practice or industry practices;
(p) (i) Indebtedness, including Indebtedness in respect of the Second Priority Senior Secured Notes, in an aggregate principal amount outstanding pursuant to this Section 6.01(p) not to exceed $1,246,000,000 and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(i) Indebtedness secured by Liens on Collateral that are Other First Liens so long as immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, the Net First Lien Leverage Ratio on a Pro Forma Basis is not greater than 3.20 to 1.00; provided that (x) the aggregate principal amount of Indebtedness outstanding under this clause (q)(i) at such time that is incurred by a Subsidiary other than a Subsidiary Loan Party shall not exceed, when taken together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(q)(i), Section 6.01(r)(i) and Section 6.01(s)(i) that are incurred by Subsidiaries other than the Subsidiary Loan Parties, the greater of $475,000,000 and 0.17 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period and (y) the incurrence of term loan Indebtedness pursuant to this clause (q)(i) shall be subject to the last paragraph of Section 6.01 and the last paragraph of Section 6.02, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(i) Indebtedness secured by Liens on Collateral that are Junior Liens so long as immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, the Net Secured Leverage Ratio on a Pro Forma Basis is not greater than 3.60 to 1.00; provided that (x) the aggregate principal amount of Indebtedness outstanding under this clause (r)(i) at such time that is incurred by a Subsidiary other than a Subsidiary Loan Party shall not exceed, when taken together with the aggregate principal amount of any other Indebtedness outstanding pursuant to Section 6.01(q)(i), this Section 6.01(r)(i) and Section 6.01(s)(i) that are incurred by Subsidiaries other than the Subsidiary Loan Parties, the greater of $475,000,000 and 0.17 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period and (y) the incurrence of any term loan Indebtedness pursuant to this clause (r)(i) shall be subject to the last paragraph of this Section 6.01, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(i) unsecured Indebtedness so long as immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, the Interest Coverage Ratio on a Pro Forma Basis is not less than 2.00 to 1.00; provided that (x) the aggregate principal amount of Indebtedness outstanding under this clause (s)(i) at such time that is incurred by a Subsidiary other than a Subsidiary Loan Party shall not exceed, when taken together with the aggregate principal amount of any other Indebtedness outstanding pursuant to Section 6.01(q)(i), Section 6.01(r)(i) and this Section 6.01(s)(i) that are incurred by Subsidiaries other than the Subsidiary Loan Parties, the greater of $475,000,000 and 0.17 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period and (y) the incurrence of any term loan Indebtedness pursuant to this clause (s)(i) shall be subject to the last paragraph of this Section 6.01, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(i) Indebtedness of Subsidiaries that are not Subsidiary Loan Parties in an aggregate principal amount outstanding that, immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(t), would not exceed the greater of $350,000,000 and 0.12 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(u) Indebtedness incurred in the ordinary course of business in respect of obligations of suppliersthe 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, customersthat 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, franchisees consultants or independent contractors of and licensees the Borrower (or, to and of the extent such work is done for the Borrower and or its Subsidiaries, any direct or indirect parent thereof) or any Subsidiary incurred in the ordinary course of business;
(w) Indebtedness in connection with Permitted Securitization Financings;
(x) obligations in respect of Cash Management Agreements;
(i) Refinancing Notes and (ii) any Permitted Refinancing Indebtedness incurred in respect thereof;
(i) Indebtedness in an aggregate principal amount outstanding not to exceed the Incremental Amount available at the applicable time of determination set forth in the definition thereof; provided that the incurrence of term loan Indebtedness pursuant to this clause (z)(i) shall be subject to the last paragraph of Section 6.02, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(aa) Guarantees of Indebtedness under customer financing lines of credit entered into in the ordinary course of business;
(i) Indebtedness of, incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures in an aggregate principal amount that, immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(bb), would not exceed the greater of $150,000,000 and 0.05 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(cc) Indebtedness issued by the Borrower or any Subsidiary to current or former officers, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of Holdings or any Parent Entity permitted by Section 6.06;
(dd) Indebtedness consisting of oblig
Appears in 7 contracts
Sources: Incremental Assumption and Amendment Agreement (ADT Inc.), Incremental Assumption and Amendment Agreement (ADT Inc.), Incremental Assumption and Amendment Agreement (ADT Inc.)
Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except:
(a) the Obligations;
(b) Senior Notes in an aggregate principal amount not to exceed $4,350,000,000;
(c) Indebtedness of any Subsidiary of Borrower Holdings to Borrower or any other such Subsidiary or of Borrower to any of its SubsidiariesHoldings; provided that provided, (i) all such IndebtednessIndebtedness shall be evidenced by the Intercompany Note, and, if owed to a Credit Party, shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral DocumentSecurity Agreement, (ii) all such Indebtedness owing shall be unsecured and, if owed by a Credit Party to a Subsidiary that is not a Credit Party Party, shall be unsecured and subordinated in right of payment to the payment Payment in full Full of the Obligations pursuant to the terms of a subordination agreement with respect to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness and Intercompany Note, (iii) any payment by any such Guarantor Subsidiary under any guaranty of the Obligations shall result in respect a pro rata reduction of the amount of any Indebtedness owing owed by a such Subsidiary that to the Borrower or to any other Credit Parties for whose benefit such payment is not a Credit Party to a Credit Party, made and (iv) such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d);
(dc) Indebtedness incurred by Borrower or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) or from guaranties or letters of credit, surety bonds, performance bonds or similar obligations securing the performance of Borrower or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or any of its Subsidiaries[Reserved];
(ed) Indebtedness which may be deemed to exist pursuant to any workers’ compensation claims, self-insurance obligations, guaranties, performance, surety, statutory, appeal bonds or similar obligations incurred in the ordinary course of business;
(fe) Indebtedness in respect consisting of netting (i) any treasury or other cash management services, overdraft protections and otherwise in connection with including deposit accounts, automated clearing house (ACH) origination and other funds transfer, depository (including cash vault and check deposit), zero balance accounts and sweeps, return items processing, controlled disbursement accounts, positive pay, lockboxes and lockbox accounts, account reconciliation and information reporting, payables outsourcing, payroll processing, trade finance services, endorsements of instruments for deposit, investment accounts and securities accounts, and (ii) card services, including credit card (including purchasing card and commercial card), purchase cards (including so-called “procurement cards” or “P-Cards”), prepaid cards, including payroll, stored value and gift cards, merchant services processing, and debit card services, in each case incurred in the ordinary course of business;
(gf) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees of and licensees of Subsidiaries of Holdings;
(g) guaranties by the Borrower of Indebtedness of a Guarantor Subsidiary or guaranties by the Borrower or a Guarantor Subsidiary of Indebtedness of the Borrower or another Subsidiary with respect, in each case, to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.1; provided, that (i) no Non-Guarantor Subsidiary shall be permitted to guaranty any Indebtedness of a Credit Party that is unsecured and/or subordinated to the Obligations, (ii) if the Indebtedness that is being guarantied is unsecured and/or subordinated to the Obligations, the guaranty must also be unsecured and/or subordinated to the Obligations, and (iii) such Indebtedness shall permitted as an Investment under Section 6.6(d);
(h) Indebtedness existing as of Borrower the Restatement Date described in Schedule 6.1, and Permitted Refinancing Indebtedness relating thereto;
(i) Indebtedness of Subsidiaries of Holdings with respect to Capital Lease Obligations and Purchase Money Obligations in an aggregate principal amount not to exceed at any time outstanding the greater of (x) $5,000,000 and (y) 15% of Consolidated EBITDA, on a Pro Forma Basis, for the most recently ended Test Period; provided that any such Indebtedness (i) 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 (ii) shall be secured only by the asset acquired, constructed, leased or improved in connection with the incurrence of such Indebtedness, and any Permitted Refinancing Indebtedness relating thereto;
(i) Indebtedness of a Person or Indebtedness attaching to assets of a Person that, in either case, becomes a Subsidiary of Holdings or Indebtedness attaching to assets that are acquired by any Operating Credit Party or any of its Subsidiaries, in each case after the Closing Date as the result of any Investment permitted pursuant to Section 6.6 that results in a Person becoming a Subsidiary of Holdings (including any Permitted Acquisition) and (ii) any Permitted Refinancing Indebtedness relating to the Indebtedness specified in subclause (i) of this Section 6.1(j); provided that (A) any outstanding principal amount of Indebtedness permitted under this Section 6.1(j) shall not exceed an aggregate principal amount at any one time outstanding equal to the greater of (x) $15,000,000 and (y) 45% of Consolidated EBITDA, on a Pro Forma Basis, for the most recently ended Test Period, and (B) in the case of Indebtedness referred to in subclause (i) of this Section 6.1(j), (x) such Indebtedness existed at the time such Person became a Subsidiary of Holdings or at the time such assets were acquired and, in each case, was not created in anticipation thereof and (y) such Indebtedness is not guaranteed in any respect by Holdings or any Subsidiary of Holdings (other than by any such Person that so becomes a Subsidiary of Holdings in connection with such Investment);
(k) Indebtedness owing under Hedging Agreements entered into in order to manage existing or anticipated interest rate, exchange rate or commodity price risks and not for speculative purposes;
(l) Indebtedness representing deferred compensation to employees and directors or former employees or directors of Holdings and its SubsidiariesSubsidiaries in the ordinary course of business;
(m) Indebtedness for overdraft protections in the ordinary course of business; provided, however, that such Indebtedness is promptly extinguished;
(n) Indebtedness under letters of credit in an aggregate principal amount outstanding not to exceed the greater of (x) $7,500,000 and (y) 25% of Consolidated EBITDA, on a Pro Forma Basis, for the most recently ended Test Period;
(o) Indebtedness consisting of the financing of (i) insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(p) Indebtedness consisting of promissory notes issued by Holdings to any stockholder of Holdings or any current or former director, officer, employee, member of management, manager or consultant of Holdings, the Borrower or any Subsidiary of Holdings (or their respective immediate family members) to finance the purchase or redemption of Equity Interests permitted by Section 6.4(e);
(q) Indebtedness incurred by Holdings or any of its Subsidiaries arising from agreements providing for indemnification, adjustment or purchase price or similar obligations, or from guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Subsidiary of Holdings pursuant to such agreements, in connection with Permitted Acquisitions, other Investments permitted pursuant to Section 6.6 or permitted Dispositions of any business, assets or Subsidiary of Holdings;
(r) (A) Indebtedness (the Indebtedness incurred pursuant to this Section 6.1(r), the “Ratio Indebtedness”) of Holdings, the Borrower or any Subsidiary; provided that (1) at the time of the incurrence thereof and on a Pro Forma Basis after giving effect to the use of the proceeds thereof, no Event of Default shall have occurred or be continuing, and (2) the aggregate principal amount of Indebtedness outstanding in reliance on this clause (r) shall not exceed the sum of:
(i) additional unlimited amounts so long as after giving effect to the incurrence of such Ratio Indebtedness and the use of proceeds thereof, calculated on a Pro Forma Basis as of the Test Period most recently ended on or prior to such date of incurrence (measured as of the date such Indebtedness is incurred based upon the financial statements most recently delivered on or prior to such date pursuant to Section 5.1(a) or (b)) (but excluding from the computation thereof the proceeds of such Indebtedness), (A) in the case of unsecured Ratio Indebtedness, the Total Leverage Ratio would not exceed 5.75:1.00 calculated on a Pro Forma Basis after giving effect to all other transactions consummated in connection therewith, (B) in the case of Ratio Indebtedness that is Secured Debt secured by Liens that rank (or are intended to rank) junior to the Liens on the Collateral securing the Obligations or secured by Liens on assets not constituting Collateral, the Secured Leverage Ratio would not exceed 5.25:1.00 calculated on a Pro Forma Basis after giving effect to all other transactions consummated in connection therewith and (C) in the case of Ratio Indebtedness that is Senior Secured Debt, the Senior Secured Leverage Ratio would not exceed 4.75:1.00 calculated on a Pro Forma Basis after giving effect to all other transactions consummated in connection therewith; provided that:
(1) if such Indebtedness is Senior Secured Debt, such Indebtedness (x) does not mature prior to the Maturity Date of, or have a Weighted Average Life to Maturity shorter than the Weighted Average Life to Maturity of, any Loan outstanding at the time such Indebtedness is incurred or issued, (y) 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 Loans hereunder and (z) shall otherwise be subject to the provisions of Section 2.21(a)(ii)(A), (G) and (K) and Section 2.21(c) as if such Ratio Indebtedness was an Incremental Facility;
(2) if such Indebtedness is Secured Debt secured by Liens that rank (or are intended to rank) junior to the Liens on the Collateral securing the Obligations or secured by Liens on assets not constituting Collateral, such Indebtedness (x) does not mature prior to the date that is 180 days after the latest Maturity Date of any Loan outstanding at the time such Indebtedness is incurred or issued and (y) does not require any scheduled amortization, mandatory prepayments, redemptions, sinking fund payments or purchase offers prior to maturity (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 prepayments of the Loans hereunder pursuant to Section 2.10(e)) and change of control prepayment provisions and a customary acceleration right after an event of default), in each case prior to the date that is 180 days after the latest Maturity Date of any Loan outstanding at the time such Indebtedness is incurred);
(3) if such Indebtedness is unsecured, such Indebtedness does not mature prior to the date that is 180 days after the latest Maturity Date of any Loan outstanding at the time such Indebtedness is incurred or issued and does not require any scheduled amortization, mandatory prepayments, redemptions, sinking fund payments or purchase offers prior to maturity (other than pursuant to customary asset sale and change of control offers); and
(4) in the case of any Indebtedness described in clause (2) or (3) above, such Indebtedness shall have covenants and defaults that are (x) not materially more restrictive with respect to the obligors thereunder, as reasonably determined by the Borrower in good faith, than the covenants and defaults under the Credit Documents or (y) reflective of market terms and conditions for the type of Indebtedness issued or incurred at the time of issuance or incurrence thereof, as reasonably determined by the Borrower in good faith; and
Appears in 4 contracts
Sources: Credit and Guaranty Agreement (Playboy, Inc.), Amendment No. 4 to Amended and Restated Credit and Guaranty Agreement (PLBY Group, Inc.), Credit and Guaranty Agreement (PLBY Group, Inc.)
Indebtedness. No Credit Party shallwill, nor shall will it permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect permit to exist any Indebtedness, except:other than the following (“Permitted Indebtedness”):
(a) Indebtedness in respect of the Obligations;
(b) Senior Notes in an aggregate unsecured Indebtedness of any Credit Party pursuant to Hedging Agreements solely for purposes of hedging the rate of interest payable on the outstanding principal amount not to exceed $4,350,000,000of the Loans;
(c) Indebtedness existing as of the Closing Date which is identified in Schedule 8.2(c);
(d) Indebtedness in respect of performance, surety or appeal bonds provided in the ordinary course of business and consistent with past practice but excluding (in each case) Indebtedness incurred through the borrowing of money or Contingent Liabilities in respect thereof;
(e) purchase money Indebtedness and Capitalized Lease Liabilities incurred by any Subsidiary Credit Party in an aggregate amount at any time outstanding, when combined with the aggregate principal amount of Borrower all Indebtedness incurred pursuant to Borrower or any other such Subsidiary or of Borrower Section 8.2(j), not to any of its Subsidiaries; provided that exceed $4,500,000;
(f) Indebtedness (i) all such Indebtednessarising from customary agreements for indemnification related to sales of goods, if owed to a Credit Partylicensing of Intellectual Property or adjustment of purchase price or similar obligations in any case incurred in connection with the acquisition or Disposition permitted hereunder of any business, shall be evidenced by the Intercompany Note assets or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral DocumentSubsidiary of Holdings, (ii) all such Indebtedness owing by representing deferred compensation to employees of a Credit Party or any of its Subsidiaries incurred in the ordinary course of business consistent with past practice, and (iii) representing customer deposits and advance payments received in the ordinary course of business from customers for goods purchased in the ordinary course of business;
(g) Indebtedness with respect to cash management obligations and other Indebtedness in respect of automatic clearing house arrangements, netting services, overdraft protection and similar arrangements, in each case incurred in the ordinary course of business;
(h) unsecured Indebtedness in the nature of account or trade payables originated in the ordinary course of business;
(i) intercompany Indebtedness of any Credit Party or a Subsidiary thereof owing to another Credit Party or a Subsidiary thereof, in each case, subject to the Intercompany Subordination Agreement; provided that any intercompany Indebtedness made to a Subsidiary that is not a Credit Party shall be for the sole purpose of payroll expenses and other operational costs incurred by such Subsidiary in the ordinary course of business and consistent with past practice; and (ii) unsecured and subordinated guarantees of outstanding Permitted Indebtedness made in right the ordinary course of payment business by the Borrower or any Subsidiary of obligations of any Credit Party permitted hereunder in an aggregate amount not to exceed $1,500,000 at any time outstanding; provided that to the payment in full extent that any such Permitted Indebtedness is subordinated to the Obligations, such guarantees are similarly subordinated;
(i) Indebtedness of the Obligations Borrower or any Subsidiary Guarantor incurred to finance the acquisition, construction or improvement of any fixed or capital assets; provided that (x) such Indebtedness is incurred prior to or within two hundred seventy (270) days after such acquisition or the completion of such construction or improvement and (y) the aggregate principal amount of Indebtedness permitted by this Section 8.2(j), when combined with the aggregate principal amount of all purchase money Indebtedness and Capitalized Lease Liabilities incurred pursuant to the terms of a subordination agreement with respect to Section 8.2(e), does not exceed $4,500,000 at any time outstanding and (ii) extensions, renewals, refinancings and replacements thereof; provided that no such Indebtedness substantially extension, renewal, refinancing or replacement shall result in an increase in the form outstanding principal amount of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness;
(k) Indebtedness and (iii) at any time incurred in connection with financing insurance premiums in respect of insurance policies insuring assets or businesses of any Credit Party written or arranged in the ordinary course of business consistent with past practice;
(l) Indebtedness owing by a of any Subsidiary that is not a Credit Party in an aggregate outstanding principal amount not to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d)exceed $2,000,000;
(dm) Indebtedness incurred by Borrower or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) or from guaranties or constituting letters of creditcredit in an aggregate face amount at any time outstanding not to exceed $6,000,000; provided, surety bondsin each case, performance bonds or similar obligations securing the performance of Borrower or that any such Subsidiary pursuant letter of credit is used solely to such agreements, secure obligations in connection with Permitted Acquisitions respect of a lease or permitted dispositions sublease of any business, assets or Subsidiary of Borrower a Credit Party or any of its Subsidiaries;; and other Indebtedness in an aggregate outstanding principal amount not to exceed $1,500,000; and
(n) unsecured Indebtedness of Holdings in respect of any subordinated convertible promissory note, in an aggregate principal amount not to exceed $75,000,000 (plus the amount of interest paid-in-kind thereon pursuant to the terms of such notes on the date of incurrence thereof); provided that (x) such Indebtedness shall not mature before the date that is ninety-one (91) days after the Maturity Date, (y) such Indebtedness shall not permit cash payments with respect to the principal or interest thereon and (z) such Indebtedness shall at all times be subject to a subordination agreement in form and substance satisfactory to the Agent; provided that, no Indebtedness otherwise permitted by clauses (e) Indebtedness which may or (j) of this Section 8.2 shall be deemed assumed, created or otherwise incurred if at the time of such assumption, creation or incurrence, a Default has occurred and is then continuing or could reasonably be expected to exist pursuant to any guaranties, performance, surety, statutory, appeal or similar obligations incurred in the ordinary course of business;
(f) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accounts;
(g) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees of and licensees to and of Borrower and its Subsidiaries;result therefrom.
Appears in 4 contracts
Sources: Credit Agreement (Heartflow, Inc.), Credit Agreement (Heartflow, Inc.), Credit Agreement (Heartflow, Inc.)
Indebtedness. No Credit Party shallThe Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly, to create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except:
(a) the Secured Obligations;
(b) Senior Notes Indebtedness of (i) the Borrower to any Restricted Subsidiary and/or (ii) any Restricted Subsidiary to the Borrower and/or any other Restricted Subsidiary; provided that (A) in an aggregate principal amount the case of any Indebtedness of any Restricted Subsidiary that is not a Loan Party owing to exceed $4,350,000,000the Borrower or any Restricted Subsidiary that is a Loan Party, the related Investment is permitted under Section 6.06, and (B) any Indebtedness of any Loan Party owing to any Restricted Subsidiary that is not a Loan Party incurred in reliance on this clause (b) must be unsecured and expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (it being understood that the subordination terms set forth in the Intercompany Note are acceptable to the Administrative Agent);
(c) Indebtedness of any Subsidiary of Borrower to Borrower or any other such Subsidiary or of Borrower to any of its Subsidiaries; provided that (i) all such Indebtedness, if owed to a Credit Party, shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral Document, (ii) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of a subordination agreement with respect to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness and (iii) in respect of any Indebtedness owing by a Subsidiary that is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d);
(d) Indebtedness incurred by Borrower or any of its Subsidiaries arising from agreements any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with the Transactions, any Disposition permitted hereunder, any acquisition or other Investment permitted hereunder or consummated prior to the Closing Date or any other purchase of assets or Capital Stock or any other Investment, and (ii) Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) or arising from guaranties or guaranties, letters of credit, bank guaranties, surety bonds, performance bonds or similar obligations instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreementsagreement;
(d) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) as a result of or pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business or pursuant to self-insurance obligations and not in connection with Permitted Acquisitions debt for borrowed money and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or permitted dispositions of any business, assets or Subsidiary of Borrower or similar instruments to support any of its Subsidiariesthe foregoing items;
(e) Indebtedness which may be deemed of the Borrower and/or any Restricted Subsidiary in respect of Banking Services and/or otherwise in connection with Cash management and Deposit Accounts;
(f) (i) guaranties by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers, franchisees and licensees in the ordinary course of business in an aggregate outstanding principal amount not to exist pursuant exceed the greater of $1,500,000 and 5% of Consolidated Adjusted EBITDA, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to any guarantiespay 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, performancebankers’ acceptances, surety, statutory, appeal bank guaranties or similar obligations incurred instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(fg) 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 respect the case of netting servicesany Guarantee by any Loan Party of the obligations of any non-Loan Party, overdraft protections and otherwise in connection with deposit accountsthe related Investment is permitted under Section 6.06;
(gh) guaranties Indebtedness of 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 $1,000,000 shall be described on Schedule 6.01;
(i) Indebtedness of Restricted Subsidiaries that are not Loan Parties; provided that the aggregate outstanding principal amount of such Indebtedness shall not exceed (x) prior to the consummation of an IPO, the greater of $6,000,000 and 25% of Consolidated EBITDA as of the last day of the most recently ended Test Period, and (y) following the consummation of an IPO, the greater of $9,600,000 and 40% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(j) 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;
(k) 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;
(l) Indebtedness of the obligations Borrower and/or any Restricted Subsidiary with respect to Capital Leases and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed (x) prior to the consummation of suppliersan IPO, customersthe greater of $6,000,000 and 25% of Consolidated EBITDA as of the last day of the most recently ended Test Period, franchisees and (y) following the consummation of an IPO, the greater of $12,000,000 and licensees 50% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(m) Indebtedness of any Person that becomes a Restricted Subsidiary and/or Indebtedness assumed in connection with any acquisition or similar Investment; provided that:
(i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in contemplation of the applicable acquisition or similar Investment, and
(ii) after giving effect to such Indebtedness on a Pro Forma Basis, the Borrower is in compliance with Section 6.10(a);
(n) Indebtedness issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower (or 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 the Borrower (or any Parent Company) permitted by Section 6.04(a);
(o) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (h), (i), (l), (m), (r), (s), (t), (u) and/or (cc) of this Section 6.01 (in any case, including any refinancing Indebtedness incurred in respect thereof, “Refinancing Indebtedness”) and its Subsidiariesany subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of, and commitments in respect of, the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (1) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (2) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02);
(ii) in the case of Refinancing Indebtedness with respect to clauses (a), (w) and/or (z) (other than Customary Bridge Loans), such Indebtedness (other than revolving indebtedness) has a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) (x) the final maturity of the Indebtedness refinanced, refunded or replaced and (y) the Latest Maturity Date;
(iii) the terms of any Replacement Debt with an original principal amount in excess of the Threshold Amount (excluding, to the extent applicable, pricing (including any “MFN” provision), fees, premiums, rate floors, optional prepayment, funding discounts, maturity, amortization schedule, redemption terms or subordination terms and security), are not, taken as a whole (as determined by the Borrower in good faith), more favorable to the lenders providing such Indebtedness than those applicable to the Indebtedness being refinanced, refunded or replaced (other than (A) any covenant or any other provision applicable only to periods after the applicable maturity date of the debt then being refinanced as of such date, (B) any covenant or provision which constitutes a then-current market term for the applicable type of Indebtedness (as determined by the Borrower in good faith), or (C) any covenant or other provision which is conformed (or added) to the Loan Documents for the benefit of the Lenders or, as applicable, the Administrative Agent, pursuant to an amendment to this Agreement effectuated in reliance on Section 9.02(d)(ii), it being understood and agreed that if any Refinancing Indebtedness that constitutes a revolving facility includes a financial covenant, the requirement set forth in this clause (iii) shall be satisfied if such financial covenant is added to this Agreement for the benefit of the then-existing Revolving Facility);
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (i), (l), (m)(ii)(C), (r), (t), (u) and/or (cc) of this Section 6.01, the incurrence thereof shall be without duplication of any amount outstanding in reliance on the relevant clause such that the amount available under the relevant clause shall be reduced by the amount of the applicable Refinancing Indebtedness;
(v) except in the case of Refinancing Indebtedness constituting Replacement Debt, (A)(1) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and (2) either (x) if the Liens securing such Indebtedness were originally contractually subordinated to the Liens on the Collateral securing the Initial Revolving Facility, the Liens securing such Indebtedness are subordinated to the Liens on the Collateral securing the Initial Revolving Facility on terms not materially less favorable (as determined by the Borrower in good faith), taken as a whole, to the Lenders than those (I) applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or (II) set forth in any relevant Intercreditor Agreement or (y) the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i)); it being understood that the proceeds of any such Refinancing Indebtedness may be funded into Escrow pursuant to customary (in the good faith determination of the Borrower) escrow arrangements, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01 (it being understood that (1) any entity that was a guarantor in respect of the relevant refinanced Indebtedness may be the primary obligor in respect of the refinancing Indebtedness, and any entity that was the primary obligor in respect of the relevant refinanced Indebtedness may be a guarantor in respect of the refinancing Indebtedness and (2) the obligation of any Person with respect to any Escrow arrangement into which the proceeds of such Refinancing Indebtedness are deposited shall not constitute a Guarantee) and (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i)); and
(vi) in the case of Refinancing Indebtedness constituting Replacement Debt, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Refinancing Indebtedness that is pari passu or junior with respect to the Collateral shall be subject to an Intercreditor Agreement, (B) if the Indebtedness being refinanced, refunded or replaced is secured, it is not secured by any asset that does not constitute Collateral; it being understood that the proceeds of any such Refinancing Indebtedness may be funded into Escrow pursuant to customary (in the good faith determination of the Borrower) escrow arrangements, (C) if the Indebtedness being refinanced, refunded or replaced is Guaranteed, it shall not be Guaranteed by any Restricted Subsidiary of the Borrower other than one or more Loan Parties (it being understood that the obligation of any Person with respect to any Escrow arrangement into which the proceeds of such Refinancing Indebtedness are deposited shall not constitute a Guarantee) and (D) such Refinancing Indebtedness is incurred under (and pursuant to) documentation other than this Agreement;
(p) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(q) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of any Parent Company, the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed (x) prior to the consummation of an IPO, the greater of $6,000,000 and 25% of Consolidated EBITDA as of the last day of the most recently ended Test Period, and (y) following the consummation of an IPO, the greater of $12,000,000 and 50% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(s) Unsecured Indebtedness of the Borrower and/or any Restricted Subsidiary (any Indebtedness incurred pursuant to this Section 6.01(s), “Ratio Debt”) so long as:
(i) after giving effect thereto, including the application of the proceeds thereof (in each case, without “netting” the cash proceeds of the applicable Indebtedness being incurred), the outstanding principal thereof does not exceed an unlimited amount, so long as, in the case of this clause (w), on a Pro Forma Basis, the Total Rent Adjusted Net Leverage Ratio does not exceed (i) prior to the consummation of an IPO, 5.25:1.00 as of the last day of the most recently ended Test Period and (ii) following the consummation of any IPO, 5.75:1.00 as of the last day of the most recently ended Test Period;
(ii) the aggregate outstanding principal amount of Ratio Debt incurred in reliance on this Section 6.01(s) by Restricted Subsidiaries that are not Loan Parties shall not, at any time, exceed an amount equal to (x) prior to the consummation of an IPO, the greater of
Appears in 4 contracts
Sources: Credit Agreement (Cava Group, Inc.), Credit Agreement (Cava Group, Inc.), Credit Agreement (Cava Group, Inc.)
Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, exceptother than:
(a) the Obligations, including the Guarantee of the Obligations by any Guarantors;
(b) Senior Notes in an aggregate principal amount not to exceed $4,350,000,000;
(c) Indebtedness of any Credit Party or any Subsidiary of Borrower any Credit Party to Borrower any other Credit Party or any other such Subsidiary or of Borrower to so long as any of its Subsidiaries; provided that (i) all such Indebtedness, if owed to a Credit Party, shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral Document, (ii) all such Indebtedness owing by a any Credit Party to a any Subsidiary that which is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant on terms reasonably satisfactory to the terms Administrative Agent;
(c) Guarantees of a subordination agreement with respect to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness and (iii) in respect of any Indebtedness owing by a Subsidiary that is not a Credit Party to a Credit Party, such Indebtedness is otherwise permitted as an Investment under the proviso to this Section 6.6(d)8.1;
(d) Indebtedness incurred by Borrower or existing on the Effective Date and described in Schedule 8.1, together with any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) or from guaranties or letters of credit, surety bonds, performance bonds or similar obligations securing the performance of Borrower or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or any of its SubsidiariesRefinancing thereof;
(e) Indebtedness with respect to (x) Capital Leases and (y) purchase money Indebtedness; provided, in the case of clause (x), that any such Indebtedness shall be secured only by the asset subject to such Capital Lease, and, in the case of clause (y), that any such Indebtedness shall be secured only by the asset acquired in connection with the incurrence of such Indebtedness; provided further that the sum of the aggregate principal amount of any Indebtedness under this clause (e) shall not exceed at any time $5,000,000;
(f) Indebtedness in respect of any Swap Contract that is entered into in the ordinary course of business to hedge or mitigate risks to which may be deemed any Credit Party or any of its Subsidiaries is exposed in the conduct of its business or the management of its liabilities (it being acknowledged by the Credit Parties that a Swap Contract entered into for speculative purposes or of a speculative nature is not a Swap Contract entered into in the ordinary course of business to exist pursuant to any guaranties, performance, surety, statutory, appeal hedge or similar obligations incurred mitigate risks);
(g) Indebtedness arising in connection with the financing of insurance premiums in the ordinary course of business;
(fh) cash management obligations and other Indebtedness in respect of endorsements for collection or deposit, netting services, overdraft protections and otherwise similar arrangements, in each case, in connection with deposit accounts;
(g) guaranties accounts in the ordinary course of business business;
(i) Indebtedness representing deferred compensation to officers, directors, employees of the obligations of suppliers, customers, franchisees of and licensees to and of Borrower Parent and its Subsidiaries;
(j) Secured Recourse Indebtedness of any Credit Party or any Subsidiary (other than any Subsidiary which is a Guarantor hereunder); provided, the Credit Parties shall be in compliance, on a pro forma basis after giving effect to such Recourse Indebtedness and related transactions, with the financial covenants set forth in Section 8.8, recomputed as of the last day of the most recently ended Fiscal Quarter of the Borrower for which financial statements have been delivered pursuant to Section 7.1;
(k) Unsecured Indebtedness of the Credit Parties and their Subsidiaries provided the Credit Parties shall be in compliance, on a pro forma basis after giving effect to such Unsecured Indebtedness and related transactions, with the financial covenants set forth in Section 8.8, recomputed as of the last day of the most recently ended Fiscal Quarter of the Borrower for which financial statements have been delivered pursuant to Section 7.1; and
(l) Non-Recourse Indebtedness of any Subsidiaries that are not Unencumbered Property Owners hereunder; provided, the Credit Parties shall be in compliance, on a pro forma basis after giving effect to such Non-Recourse Indebtedness and related transactions, with the financial covenants set forth in Section 8.8, recomputed as of the last day of the most recently ended Fiscal Quarter of the Borrower for which financial statements have been delivered pursuant to Section 7.1.
Appears in 4 contracts
Sources: Credit Agreement (Healthpeak Properties, Inc.), Credit Agreement (Healthpeak Properties, Inc.), Credit Agreement (Physicians Realty Trust)
Indebtedness. No Credit Party None of the Loan Parties shall, nor shall it they permit any of its their Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except:
(a) the ObligationsSecured Obligations (including any Additional Term Loans and Additional Revolving Loans);
(b) Senior Notes in an aggregate principal amount not to exceed $4,350,000,000;
(c) Indebtedness of any Subsidiary of Borrower Holdings to Borrower or any other such Subsidiary or of Borrower to any of its SubsidiariesSubsidiary; provided that in the case of any Indebtedness of a Subsidiary (ix) that is not a Loan Party owing to a Loan Party or (y) that is not a Specified Loan Party owing to a Specified Loan Party, in each case such Indebtedness shall be permitted as an Investment by Section 6.03; provided, further, that (A) all such Indebtedness, if owed to a Credit Party, Indebtedness shall be evidenced by the Intercompany Note intercompany promissory notes and all such notes owned or another promissory note and held by a Loan Party shall be subject to a First Priority Lien pursuant to the applicable Collateral Document, Pledge and Security Agreement and (iiB) with respect to all such Indebtedness owing by a Credit of any Loan Party to a any Subsidiary that is not a Credit Loan Party shall such Indebtedness must be unsecured and expressly subordinated in right of payment to the payment in full Obligations of the Obligations pursuant such Loan Party on terms reasonably acceptable to the terms of a subordination agreement with respect to such Administrative Agent;
(c) Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness and (iii) incurred in respect of any Indebtedness owing by a Subsidiary the Subordinated Notes in an aggregate principal amount that is does not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d)exceed $40,000,000;
(d) Indebtedness incurred by Borrower or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder or Permitted Acquisitions permitted hereunder or other purchases of assets or Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) or arising from guaranties or guaranties, letters of credit, surety bonds, bonds or performance bonds or similar obligations securing the performance of Borrower or any such Subsidiary member of the Combined Group pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or any of its Subsidiaries;
(e) Indebtedness which may be deemed to exist pursuant to any guarantiestenders, performancestatutory obligations, surety, statutorystay, appeal customs, appeal, bid, leases, governmental contracts, trade contracts, performance and return of money bonds or other similar obligations incurred in the ordinary course of business, in each case not constituting any Indebtedness for borrowed money, and in respect of any letters of credit related thereto;
(f) Indebtedness in respect of (i) commercial credit cards, stored value cards, purchasing cards and treasury management services, including Banking Services Obligations, and other netting services, overdraft protections protections, automated clearing-house arrangements, employee credit card programs, controlled disbursement, ACH transactions, return items and interstate depository network services and, in each case, similar arrangements and otherwise in connection with deposit accountsCash management and Deposit Accounts and (ii) Securities that are the subject of repurchase agreements constituting Investments permitted under Section 6.03 arising out of repurchase transactions;
(gi) guaranties of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business of a member of the Combined Group in respect of obligations to pay the deferred purchase price of suppliersgoods or services or progress payments in connection with such goods and services and (iii) Indebtedness in respect of any bankers’ acceptance supporting trade payables, customers, franchisees warehouse receipts or similar facilities entered into in the ordinary course of and licensees to and of Borrower and its Subsidiariesbusiness;
Appears in 4 contracts
Sources: Credit Agreement (Osmotica Pharmaceuticals PLC), Credit Agreement (Osmotica Pharmaceuticals PLC), Credit Agreement (Osmotica Pharmaceuticals LTD)
Indebtedness. No Credit Party shallThe Borrower shall not, nor shall it permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except:
(a) the ObligationsSecured Obligations (including any Additional Term Loans and any Additional Opco Revolving Facility Repayment Term Loans);
(b) Senior Notes Indebtedness of the Borrower to any Subsidiary and/or of any Subsidiary to the Borrower and/or any other Subsidiary; provided, that in the case of any Indebtedness of any Subsidiary owing to the Borrower, such Indebtedness shall be permitted as an aggregate principal amount not Investment under Section 6.06; provided, further, that any Indebtedness of the Borrower to exceed $4,350,000,000any Subsidiary must be unsecured and expressly subordinated to the Obligations of the Borrower on terms that are acceptable to the Administrative Agent (acting at the direction of the Required Lenders, acting reasonably) (including pursuant to an Intercompany Note);
(c) Indebtedness of any Subsidiary of Borrower to Borrower or any other such Subsidiary or of Borrower to any of its Subsidiaries; provided that (i) all such Indebtedness, if owed to a Credit Party, shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral Document, (ii) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of a subordination agreement with respect to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness and (iii) in respect of any Indebtedness owing by a Subsidiary that is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d)[reserved];
(d) Indebtedness incurred by Borrower or any of its Subsidiaries arising from agreements any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date or any other purchase of assets or Capital Stock, and Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) or arising from guaranties or guaranties, letters of credit, bank guaranties, surety bonds, performance bonds or similar obligations instruments securing the performance of the Borrower or any such Subsidiary pursuant to any such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or any of its Subsidiariesagreement;
(e) Indebtedness which may be deemed to exist of the Borrower and/or any Subsidiary (i) pursuant to any guarantiestenders, performancestatutory obligations, bids, leases, governmental contracts, trade contracts, surety, statutorystay, appeal customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
(f) Indebtedness of the Borrower and/or any Subsidiary in respect of Banking Services and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guaranties by the Borrower and/or any Subsidiary of the obligations of suppliers, distributors, resellers, customers, licensees and sublicensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any 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;
(fh) Guarantees by the Borrower and/or any Subsidiary of Indebtedness or other obligations of the Borrower, any Subsidiary and/or any joint venture with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 by the Borrower or such Subsidiary, as applicable, or other obligations of the Borrower and/or any Subsidiary not prohibited by this Agreement (and not prohibited to be incurred by the Borrower or such Subsidiary); provided, that in respect the case of netting servicesany Guarantee by the Borrower of the obligations of any Subsidiary of the Borrower or of any joint venture, overdraft protections and otherwise in connection with deposit accountsthe related Investment is permitted under Section 6.06;
(gi) guaranties Indebtedness of the Borrower and/or any Subsidiary existing, or pursuant to commitments existing, on the Closing Date; provided, that any such Indebtedness in excess of $5,000,000 shall be described on Schedule 6.01;
(j) Surety Bond Indebtedness;
(k) Indebtedness of the Borrower and/or any Subsidiary consisting of obligations owing under incentive (including dealer incentive), supply, distribution, resale, vendor, license, sublicense or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the obligations Borrower and/or any Subsidiary with respect to Capital Leases and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of suppliers$52,850,000 and 35% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(n) Indebtedness of any Person that becomes a Subsidiary or Indebtedness assumed in connection with any acquisition or similar Investment permitted hereunder after the Closing Date; provided, customersthat (i) such Indebtedness (A) existed at the time such Person became a Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation thereof, franchisees and (ii) the aggregate outstanding principal amount of such Indebtedness does not exceed the greater of $20,000,000 and licensees 25% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Subsidiary to any stockholder of any Parent Company or any current or former director, officer, employee, member of management, manager or consultant of any Parent Company, the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of any Parent Company permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (j), (m), (n), (q), (r), (u), (w), (y), (z), (bb) and/or (ff) 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), (x), (y) and/or (bb) (other than Customary Bridge Loans or Customary Term A Loans), such Indebtedness has (A) a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Latest 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 has (x) 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 (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 other provisions applicable only to periods after the applicable maturity date of the debt then-being refinanced as of such date, (B) any covenants or provisions which reflect then-current market terms for the applicable type of Indebtedness or (C) any covenant or other provision which is conformed (or added) to the Loan Documents for the benefit of the Lenders or, as applicable, the Administrative Agent pursuant to an amendment to this Agreement effectuated in reliance on Section 9.02(d)(ii)),
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (n), (q) (solely as it relates to the Fixed Incremental Amount), (r), (u), (w) (solely as it relates to the Fixed Incremental Amount), (y), (z) (solely as it relates to the Fixed Incremental Amount), (bb) and/or (ff) (solely as it relates to the Fixed Incremental Amount) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause such that the amount available under the relevant clause shall be reduced by the amount of the applicable Refinancing Indebtedness,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and if the Liens securing such Indebtedness were originally contractually subordinated to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those (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 this 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 Refinancing Indebtedness is contractually subordinated to the Obligations in right of payment, or (2) if such Refinancing Indebtedness is not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i)), and (D) as of the date of the incurrence of such Indebtedness and after giving effect thereto, no Event of Default exists, and
(vi) in the case of Replacement Debt, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided, that any such Refinancing Indebtedness that is pari passu or junior with respect to the Collateral shall be subject to an Acceptable Intercreditor Agreement, (B) if the Indebtedness being refinanced, refunded or replaced is secured, it is not secured by any assets other than the Collateral, (C) if the Indebtedness being refinanced, refunded or replaced is Guaranteed, it shall not be Guaranteed by any Person 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 Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a First Priority Lien basis with respect to the Collateral may participate in (x) any voluntary prepayment of Term Loans as set forth in Section 2.11(a)(i) and (y) any mandatory prepayment of Term Loans as set forth in Section 2.11(b)(vii);
(q) Indebtedness incurred by the Borrower to finance any acquisition or similar Investment permitted hereunder after the Closing Date in an outstanding principal amount not to exceed in the aggregate (a) the Fixed Incremental Amount plus (b) an additional amount so long as after giving effect thereto on a Pro Forma Basis as of the last day of the most recently ended Test Period, including the application of the proceeds thereof (in each case, without “netting” the cash proceeds of the applicable Indebtedness being incurred and, in the case of any revolving indebtedness, assuming a full utilization thereof), giving effect to any related transaction in connection therewith and all customary pro forma events and adjustments (such Indebtedness, “Incurred Acquisition Debt”):
(i) if such Indebtedness is secured by a Lien on the Collateral that is pari passu with the Lien on the Collateral securing the Secured Obligations that are secured on a First Priority Lien basis, the First Lien Leverage Ratio does not exceed 3.40:1.00;
(ii) if such Indebtedness is secured by a Lien on the Collateral that is junior to the Lien on the Collateral securing the Secured Obligations that are secured on a First Priority Lien basis, the Secured Leverage Ratio does not exceed 3.90:1.00; or
(iii) if such Indebtedness is unsecured, either (1) the Total Leverage Ratio does not exceed 3.90:1.00 or (2) the Interest Coverage Ratio is not less than 2.25:1.00;
(iv) provided, that:
(A) the MFN Provision shall apply to any Incurred Acquisition Debt that constitutes MFN Indebtedness, and
(B) if such Incurred Acquisition Debt consists of Indebtedness for borrowed money or Indebtedness of the kind described in clause (c) of the definition thereof:
(C) (x) the Weighted Average Life to Maturity applicable to such Incurred Acquisition Debt (other than Customary Bridge Loans or Customary Term A Loans) shall not be shorter than the Weighted Average Life to Maturity of any then-existing Class of Term Loans (without giving effect to any prepayment that would otherwise modify the Weighted Average Life to Maturity of such Term Loans) and (y) the final maturity date with respect to such Incurred Acquisition Debt (other than Customary Bridge Loans or Customary Term A Loans) is no earlier than the Latest Maturity Date applicable to any then-existing Term Loan, as applicable, thereof;
(D) subject to clause (1) above, such Incurred Acquisition Debt may otherwise have an amortization schedule as determined by the Borrower and its Subsidiaries;the lenders providing such Incurred Acquisition Debt, and
(E) such Incurred Acquisition Debt (x) may rank pari passu with or junior to any then-existing Class of Term Loans in right of payment and/or security or may be unsecured; provided, that, to the extent the relevant Incurred Acquisition Debt is secured, it may not be secured by any assets other than the Collateral (other than with respect to proceeds of
Appears in 3 contracts
Sources: Credit Agreement (SOLV Energy, Inc.), Credit Agreement (SOLV Energy, Inc.), Credit Agreement (SOLV Energy, Inc.)
Indebtedness. No Credit Party shallBorrower shall not, nor and shall it not permit any of its Subsidiaries to, directly or indirectly, Subsidiary to (i) create, incur, assume assume, guarantee or guaranty, or otherwise become be or remain directly or indirectly liable with respect to any Indebtedness, except:
other than Permitted Indebtedness, or (ii) prepay any Indebtedness or take any actions which impose on Borrower or any Subsidiary an obligation to prepay any Indebtedness, except for (a) the Obligations;
conversion of Indebtedness into equity securities and the payment of cash in lieu of fractional shares in connection with such conversion, (b) Senior Notes in an aggregate principal amount not purchase money Indebtedness pursuant to exceed $4,350,000,000;
its then applicable payment schedule, (c) Indebtedness of prepayment by any Subsidiary of Borrower to Borrower or any other such Subsidiary or of Borrower to any of its Subsidiaries; provided that (i) all intercompany Indebtedness owed by such Indebtedness, if owed Subsidiary to a Credit any Loan Party, shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral Document, (ii) all if such Subsidiary is not a Loan Party, intercompany Indebtedness owing owed by a Credit Party such Subsidiary to a another Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of a subordination agreement with respect to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness and (iii) in respect of any Indebtedness owing by a Subsidiary that is not a Credit Party to a Credit Loan Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d);
(d) Indebtedness incurred by Borrower or any payments of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) or from guaranties or letters of credit, surety bonds, performance bonds or similar obligations securing the performance of Borrower or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or any of its Subsidiaries;
(e) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal or similar obligations trade debt incurred in the ordinary course of business;
, (e) payments of Subordinated Indebtedness to the extent permitted pursuant to the terms of the subordination agreement applicable thereto, (f) the use of proceeds of a casualty event to prepay a capital lease to the extent required thereby and to the extent such capital lease obligation constitutes Permitted Indebtedness and the Lien securing such capital lease obligation constitutes a Permitted Lien, (g) refinancing of Permitted Indebtedness as permitted under clause (xii) of the definition thereof or (h) as otherwise permitted hereunder or approved in writing by Agent. Notwithstanding anything to the contrary in the foregoing, the issuance of, performance of obligations under (including any payments of interest), and conversion, exercise, repurchase, payment (including, for the avoidance of doubt, any required repurchase in connection with the payment of Permitted Convertible Debt upon satisfaction of any condition related to the stock price of Borrower’s common stock), settlement or early termination or cancellation of (whether in whole or in part and including by netting or set-off) (in each case, whether in cash, common stock of Borrower or, following a merger event or other change of the common stock of Borrower, other securities or property), or the satisfaction of any condition that would permit or require any of the foregoing with respect to, any Permitted Convertible Debt, shall not constitute a prepayment of Indebtedness by Borrower for the purposes of this Section 7.4; provided that, to the extent the aggregate amount of cash payable upon conversion or payment of any Permitted Convertible Debt (excluding any required payment of interest with respect to such Permitted Convertible Debt and excluding any payment of cash in lieu of a fractional share due upon conversion thereof) exceeds the sum of (a) the aggregate principal amount thereof and (b) the aggregate amount received by Borrower pursuant to an exercise or early unwind or settlement of a corresponding portion of the Permitted Bond Hedge Transactions relating to such Permitted Convertible Debt (including, for the avoidance of doubt, the case where there is no Permitted Bond Hedge Transaction relating to such Permitted Convertible Debt), the payment of such excess cash shall not be permitted by the preceding sentence; provided further that principal payments in cash (other than cash in lieu of fractional shares) shall only be allowed if the Redemption Conditions are satisfied in respect of netting services, overdraft protections such payment and otherwise in connection with deposit accounts;
(g) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees of and licensees to and of Borrower and its Subsidiaries;at all times after such payment.
Appears in 3 contracts
Sources: Working Capital Facility Agreement (Heron Therapeutics, Inc. /De/), Working Capital Facility Agreement (Heron Therapeutics, Inc. /De/), Working Capital Facility Agreement (Heron Therapeutics, Inc. /De/)
Indebtedness. No Credit Party shallBorrower will not, nor shall it and will not permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, guaranty or otherwise become or remain directly or indirectly liable with respect to any IndebtednessIndebtedness for borrowed money (including in the form of Disqualified Stock), exceptexcept for:
(a) Permitted Debt of a Loan Party and any Guarantees of a Loan Party in respect thereof; provided that any Permitted Debt shall (i) not be secured other than as permitted by clause (1) of the definition of Permitted Liens and (ii) not be subject to or benefit from any Guarantee by any Person that does not also Guarantee the Obligations; provided, further, that any Permitted Debt (other than any EETC Obligations, which may be senior or superpriority in right of payments from the EETC Collateral to the Obligations) shall be pari passu in right of payment with the Obligations;
(b) Senior Notes Junior Lien Indebtedness of the Loan Parties and any Guarantees of a Loan Party in respect thereof; provided that either (i) such Junior Lien Indebtedness is Permitted Refinancing Indebtedness in respect of Permitted Debt, (ii) the aggregate amount of any such Junior Lien Indebtedness shall not exceed an aggregate principal amount not to exceed of $4,350,000,000;
5 million at any time outstanding or (ciii) such Junior Lien Indebtedness is Permitted Refinancing Indebtedness in respect of any Subsidiary of Borrower Indebtedness incurred pursuant to Borrower or any other such Subsidiary or of Borrower to any of its Subsidiaries; provided that clause (i) all such Indebtedness, if owed to a Credit Party, shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral Document, (ii) all above (or any successive Permitted Refinancing Indebtedness); provided, further, that any Junior Lien Indebtedness shall not be secured other than as permitted by clause (2) of the definition of Permitted Liens; provided further that in the event such Indebtedness owing by a Credit Party to a Subsidiary that being Guaranteed is not a Credit Party shall be unsecured and subordinated in right of payment to the Loans, then the related Guarantee shall be subordinated in right of payment in full to the Loans or the Guarantees guaranteeing the Loans, as the case may be;
(c) [reserved];
(d) unsecured Indebtedness of the Loan Parties that is Permitted Refinancing Indebtedness in respect of either Permitted Debt or Junior Lien Indebtedness (or any successive Permitted Refinancing Indebtedness) and any Guarantees of a Loan Party in respect of any of the foregoing; provided that (i) such Indebtedness shall not be subject to or benefit from any Guarantee by any Person that does not also Guarantee the Obligations, (ii) such Indebtedness shall be pari passu in right of payment with the Obligations pursuant or subordinated in right of payment with the Obligations, with any such subordinated obligation on terms reasonably satisfactory to the terms of a subordination agreement with respect to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness Administrative Agent and (iii) in respect of any Indebtedness owing by a Subsidiary that is not a Credit Party to a Credit Party, the event such Indebtedness being Guaranteed is permitted subordinated in right of payment to the Loans, then the related Guarantee shall be subordinated in right of payment to the Loans or the Guarantees guaranteeing the Loans, as an Investment under the proviso to Section 6.6(d)case may be;
(d) Indebtedness incurred by Borrower or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) or from guaranties or letters of credit, surety bonds, performance bonds or similar obligations securing the performance of Borrower or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or any of its Subsidiaries;
(e) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal or similar obligations incurred in the ordinary course of business;
(f) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accounts;
(g) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees of and licensees to and of Borrower and its Subsidiaries;
Appears in 3 contracts
Sources: Credit Agreement (Wheels Up Experience Inc.), Credit Agreement (Wheels Up Experience Inc.), Credit Agreement (Wheels Up Experience Inc.)
Indebtedness. No Credit Party Neither the Parent, the Borrower, nor any Property Subsidiary (at such time as it owns an Acceptable Unencumbered Property in the Unencumbered Pool) shall, nor shall it permit any without the prior written consent of its Subsidiaries to, directly or indirectlythe Required Lenders, create, incur, assume assume, guarantee or guarantybe or remain liable, contingently or otherwise become or remain directly or indirectly liable with respect to any IndebtednessIndebtedness on a recourse basis, except:
: (a) Indebtedness of the Obligations;
Parent or the Borrower under this Agreement, any Bond Facility or the Term Facility; (b) Senior Notes Indebtedness of the Parent, the Borrower or a Subsidiary (other than a Property Subsidiary at such time as it owns an Acceptable Unencumbered Property in an aggregate principal amount the Unencumbered Pool) which does not to exceed $4,350,000,000;
violate the provisions of Section 5.02; (c) with respect to the Parent, the Borrower or a Subsidiary (other than a Property Subsidiary at such time as it owns an Acceptable Unencumbered Property in the Unencumbered Pool), other Indebtedness solely to the extent that the creation, incurrence or assumption thereof would not result in a Default under the terms of any this Agreement; and (d) with respect to the Borrower, the Parent or a Subsidiary of Borrower (other than a Property Subsidiary at such time as it owns an Acceptable Unencumbered Property in the Unencumbered Pool), Indebtedness whose recourse is solely for so-called “bad-boy” acts, including without limitation, (i) failure to Borrower account for a tenant’s security deposits, if any, for rent or any other such Subsidiary or payment collected by a borrower from a tenant under the lease, all in accordance with the provisions of Borrower to any of its Subsidiaries; provided that (i) all such Indebtedness, if owed to a Credit Party, shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral Documentloan documents, (ii) all such Indebtedness owing by fraud or a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of a subordination agreement with respect to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness and (iii) in respect of any Indebtedness owing by a Subsidiary that is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d);
(d) Indebtedness incurred material misrepresentation made by Borrower or any Guarantor, or the holders of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price beneficial or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired ownership interests in a Permitted Acquisition) or from guaranties or letters of credit, surety bonds, performance bonds or similar obligations securing the performance of Borrower or any such Subsidiary pursuant to such agreementsGuarantor, in connection with Permitted Acquisitions or permitted dispositions of the financing evidenced by the applicable loan documents; (iii) any business, assets or Subsidiary of attempt by Borrower or any Guarantor 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 its Subsidiaries;
(e) Indebtedness which may be deemed to exist pursuant any insurance proceeds or condemnation awards relating to any guaranties, performance, surety, statutory, appeal Real Property; (v) voluntary or similar obligations incurred involuntary bankruptcy by Borrower or any Guarantor; and (vi) any environmental matter(s) affecting any Real Property which is introduced or caused by Borrower or any Guarantor or any holder of a beneficial or ownership interest in the ordinary course of business;
(f) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accounts;
(g) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees of and licensees to and of Borrower and its Subsidiaries;or any Guarantor.
Appears in 3 contracts
Sources: Credit Agreement (Education Realty Operating Partnership L P), Credit Agreement (Education Realty Operating Partnership L P), Credit Agreement (Education Realty Operating Partnership L P)
Indebtedness. No Credit Party shallThe Borrowers shall not, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except:
(a) the Obligations;
(b) Senior Notes Indebtedness of the Borrowers owed to any Restricted Subsidiary and/or of any Restricted Subsidiary or the Borrowers owed to Holdings, Intermediate Holdings, CP Holdings LLC, 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 Borrowers or any Guarantor, such Indebtedness shall be permitted as an aggregate principal amount Investment under Section 6.6; provided, further, that any Indebtedness of any Loan Party owing to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to exceed $4,350,000,000the Obligations of such Loan Party pursuant to the Intercompany Subordination Agreement or on terms that are otherwise reasonably acceptable to Agent;
(c) unsecured Indebtedness of any Subsidiary of Borrower to Borrower or any other such Subsidiary or of Borrower to any of its Subsidiaries; provided that (i) all such Indebtedness, if owed to a Credit Party, shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral Document, (ii) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of a subordination agreement with respect to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness and (iii) in respect of any Indebtedness owing by a Subsidiary that is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d);
(d) Indebtedness incurred by Borrower or any of its Subsidiaries arising from agreements any agreement providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting seller notes and contingent earn-out obligations) incurred in connection with any Permitted Acquisition or other Permitted Investments or any Disposition or attributable to (but not incurred to finance) the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto, in each case subject to satisfaction of the deferred purchase price Payment Conditions;
(d) Indebtedness of property acquired Holdings, Intermediate Holdings, CP Holdings LLC, and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds, VAT and other tax guarantees or other similar obligations incurred in a Permitted Acquisitionthe ordinary course of business and (ii) or from guaranties or in respect of any letters of credit, bank guaranties, surety bonds, performance bonds bonds, warehouse receipts or similar obligations securing the performance of Borrower or any such Subsidiary pursuant instruments to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or support any of its Subsidiariesthe foregoing items;
(e) Indebtedness which may be deemed to exist pursuant of the Borrowers and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any guarantiesof the foregoing and/or otherwise in connection with cash management and Deposit Accounts, performanceincluding Bank Product Obligations and incentive, surety, statutory, appeal supplier finance or similar programs;
(i) Guarantees by the Borrowers or any of its Restricted Subsidiaries of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrowers 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;
(fg) Guarantees by the Borrowers and/or any Restricted Subsidiary of Indebtedness or other obligations of Holdings, Intermediate Holdings, CP Holdings LLC, or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.1 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 6.6;
(h) Indebtedness of the Borrowers and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and described on Schedule 6.1 and intercompany Indebtedness outstanding on the Closing Date;
(i) Indebtedness of Restricted Subsidiaries that are not Loan Parties; provided that the aggregate principal amount at any time outstanding of such Indebtedness shall not exceed the Non-Loan Party Cap;
(j) Indebtedness of the Borrowers and/or any Restricted Subsidiary with respect to Capital Leases and purchase money Indebtedness incurred prior to or within 270 days of the acquisition, lease, completion of construction, repair of, replacement, improvement to or installation of the assets acquired, leased, constructed, repaired, replaced, improved or installed in connection with the incurrence of such Indebtedness in an aggregate outstanding principal amount not to exceed the greater of (i) $30,000,000 and (ii) 4.0% of Consolidated Total Assets at the time of any incurrence thereof; provided that with respect to such Indebtedness incurred within the United Kingdom under this clause (j), the aggregate outstanding principal amount thereof shall not exceed the greater of (x) $6,000,000 and (y) 1.0% of Consolidated Total Assets at the time of any incurrence thereof;
(k) Indebtedness of the Borrowers and/or any Restricted Subsidiary incurred or issued to finance a Permitted Acquisition or other Permitted Investment, or Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with a Permitted Acquisition or other Permitted Investment; provided that (i) the Payment Conditions are satisfied at the time of the incurrence or issuance thereof, (ii) if such Indebtedness is secured by all or any portion of the Collateral, such Indebtedness is subject to an Acceptable Intercreditor Agreement, and such Acceptable Intercreditor Agreement shall provide that the Liens on the Collateral securing such Indebtedness shall rank junior in priority to the Liens on the Collateral securing the Obligations, (iii) solely to the extent that such Indebtedness is in respect of any Person that becomes a Restricted Subsidiary or is assumed in connection with a Permitted Acquisition or other Permitted Investment, such Indebtedness existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired, and such Indebtedness was not created or incurred in anticipation thereof, and (iv) the aggregate outstanding principal amount thereof shall not exceed $10,000,000 at any time;
(l) Indebtedness consisting of promissory notes issued by the Borrowers 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 Borrowers 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 6.4(a);
(m) The Borrowers and any of their Restricted Subsidiaries may become and remain liable for any Indebtedness refinancing, refunding or replacing any Indebtedness permitted under this clause (m) and clauses (a), (c), (h), (i), (j), (k), (n), (p), (q), and (w) of this Section 6.1 (in any case, including any refinancing Indebtedness incurred in respect thereof, “Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that any refinancing, refunding or replacement of netting servicesIndebtedness permitted under Section 6.1(c), overdraft protections (i), (j), (n), (q), or (w) shall continue to constitute utilization of the applicable basket; provided further 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 and otherwise 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 deposit accountsthe relevant refinancing, refunding or replacement and (B) additional amounts permitted to be incurred pursuant to this Section 6.1 (so long as such Indebtedness is permitted to be incurred pursuant to a subsection of this Section 6.1, other than this Section 6.1(m), and, to the extent secured by Liens, such Liens are permitted to secure such Indebtedness pursuant to a subsection of Section 6.2, other than Section 6.2(k) and is deemed to constitute a utilization of the relevant basket or exception pursuant to which such additional amount is permitted),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (h), (j), (k) and/or (o) of this Section 6.1 (A) such Indebtedness has 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 final maturity of the Indebtedness being refinanced, refunded or replaced and (B) other than with respect to revolving Indebtedness, a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced,
(iii) the terms of any Refinancing Indebtedness (excluding pricing, fees, premiums, rate floors, optional prepayment or redemption terms (and, if applicable, subordination terms) and, with respect to Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) above, security), are not, taken as a whole (as reasonably determined by Holdings), more favorable to the lenders providing such Indebtedness than those applicable to the Indebtedness being refinanced, refunded or replaced (other than any covenants or any other provisions applicable only to periods after the Maturity Date as of such date or any covenants or provisions which are then-current market terms for the applicable type of Indebtedness),
(iv) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.1, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that such secured Indebtedness may go from being secured to being unsecured), (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 Sections 6.1, 6.2 and 6.6 and (C) if the Indebtedness being refinanced, refunded or replaced was originally contractually subordinated to the Obligations in right of payment (or the Liens securing such Indebtedness were originally contractually subordinated to the Liens on the Collateral securing the Obligations), such Indebtedness is contractually subordinated to the Obligations in right of payment (or the Liens securing such Indebtedness are subordinated to the Liens on the Collateral securing the Revolving Loans) on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Indebtedness (or Liens, as applicable) being refinanced, refunded or replaced, taken as a whole,
(v) in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.1, (A) such Indebtedness is junior in right of payment and secured by the Collateral on a junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is junior with respect to the Collateral shall be subject to an Acceptable Intercreditor Agreement, and such Acceptable Intercreditor Agreement shall provide that the Liens on the Collateral and the UK Collateral securing such Indebtedness shall rank junior in priority to the Liens on the Collateral and UK Collateral securing the Obligations, (B) if the Indebtedness being refinanced, refunded or replaced is secured, it is not secured by any assets other than the Collateral, (C) if the Indebtedness being refinanced, refunded or replaced is Guaranteed, it shall not be Guaranteed by any Person other than one or more Loan Parties and (D) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement; it being understood and agreed that any such Indebtedness may not participate on a greater than pro rata basis in any mandatory prepayment in respect of Revolving Loans; and
(vi) intercompany Indebtedness under Section 6.1(h) may only be refinanced, refunded or replaced with other intercompany Indebtedness;
(gn) guaranties Indebtedness of the Borrowers and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the greater of (i) $40,000,000 and (ii) 5.25% of Consolidated Total Assets; provided that (i) on a pro forma basis, after giving to the incurrence of such Indebtedness, the Fixed Charge Coverage Ratio is greater than 2.00 to 1.00, (ii) no Event of Default has occurred and is continuing or would result therefrom, and (iii) if such Indebtedness is made available to any UK Loan Party, such Indebtedness does not constitute “moratorium debt” (as defined in the Corporate Insolvency and Governance ▇▇▇ ▇▇▇▇ (UK)) unless such moratorium debt is incurred with the prior written consent of the Agent or is provided by the Lenders;
(o) customer deposits and advance payments received in the ordinary course of business from customers for goods purchased in the ordinary course of business;
(p) [reserved];
(i) Indebtedness of the Borrowers and/or any Restricted Subsidiary incurred in respect of the Second Lien Secured Notes Documents, in an aggregate outstanding principal or committed amount that does not exceed (A) $375,000,000 plus (B) up to $50,000,000 of any additional Second Lien Secured Notes issued so long as (and solely to the extent that) such issuance is permitted by the Second Lien Secured Notes Indenture (as in effect on the Closing Date) and the Payment Conditions are satisfied in respect of the foregoing, in each case of clauses (i)(A) and (i)(B), to the extent permitted by, and subject to, the terms of the Intercreditor Agreement, and (ii) any Guarantee of (A) any Indebtedness by Holdings, Intermediate Holdings, CP Holdings LLC, the Borrowers and/or any Restricted Subsidiary and (B) any permitted refinancing of any Indebtedness incurred pursuant to clause (i) above to the extent such refinancing is permitted by Second Lien Secured Notes Documents;
(r) Indebtedness of the Borrowers and/or any Restricted Subsidiary subject to satisfaction of the Payment Conditions; provided, that (i) such Indebtedness does not mature prior to the date that is six (6) months after the Maturity Date, (ii) the terms of such Indebtedness do not provide for any mandatory prepayments (other than (A) scheduled principal and interest payments and/or (B) customary mandatory prepayments required as a result of a change of control, an illegality event or in respect of a Disposition of Real Property securing such Indebtedness) prior to the Maturity Date, (iii) such Indebtedness is secured solely by Real Property and no other assets, (iv) the aggregate outstanding principal amount thereof shall not exceed $25,000,000 at any time, and (v) the Loan Parties shall cause each holder of such Indebtedness to enter into a Collateral Access Agreement with the Agent (unless otherwise agreed to by the Agent).
(s) Indebtedness (including obligations in respect of suppliersletters of credit, customersbank guaranties, franchisees surety bonds, performance bonds, warehouse receipts or similar instruments with respect to such Indebtedness) incurred by the Borrowers and/or any Restricted Subsidiary in respect of workers’ compensation claims, unemployment insurance (including premiums related thereto), other types of social security, pension obligations, vacation pay, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance;
(t) Indebtedness of the Borrowers and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and licensees to consultants of Holdings, Intermediate Holdings, CP Holdings LLC, the Borrowers and/or any Restricted Subsidiary in the ordinary course of business and of Borrower and its Subsidiaries;(ii) deferred compensation
Appears in 3 contracts
Sources: Credit Agreement (Concrete Pumping Holdings, Inc.), Credit Agreement (Concrete Pumping Holdings, Inc.), Credit Agreement (Concrete Pumping Holdings, Inc.)
Indebtedness. No Credit Party shall, nor Borrower shall it permit any of its Subsidiaries to, directly or indirectly, not create, incur, assume assume, guarantee or guaranty, or otherwise become be or remain directly or indirectly liable with respect to any Indebtedness, except:
or permit any Subsidiary so to do, other than Permitted Indebtedness, or prepay any Indebtedness or take any actions which impose on Borrower an obligation to prepay any Indebtedness, except for (a) the Obligations;
conversion of Indebtedness into equity securities and the payment of cash in lieu of fractional shares in connection with such conversion, (b) Senior Notes in an aggregate principal amount not to exceed $4,350,000,000;
connection with refinancing or replacement Indebtedness, (c) (i) purchase money Indebtedness pursuant to its then applicable payment schedule or (ii) Indebtedness owed pursuant to clause (v) of the definition of Permitted Indebtedness and prepaid in the ordinary course of business, (d) prepayment by any Subsidiary of Borrower to Borrower or any other such Subsidiary or of Borrower to any of its Subsidiaries; provided that (i) all inter-company Indebtedness owed by such IndebtednessSubsidiary to any Borrower, if owed to a Credit Party, shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral Document, (ii) all if such Subsidiary is not a Borrower, intercompany Indebtedness owing owed by a Credit Party such Subsidiary to a another Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of a subordination agreement with respect to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness and (iii) in respect of any Indebtedness owing by a Subsidiary that is not a Credit Party to a Credit PartyBorrower, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d);
(d) Indebtedness incurred by Borrower or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) or from guaranties or letters of credit, surety bonds, performance bonds or similar obligations securing the performance of Borrower or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or any of its Subsidiaries;
(e) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal or similar obligations trade debt incurred in the ordinary course of business;
business or (f) as otherwise permitted hereunder or approved in writing by Agent. Notwithstanding anything to the contrary in the foregoing, the issuance of, performance of obligations under (including any payments of interest), and conversion, exercise, repurchase, redemption, settlement or early termination or cancellation of (whether in whole or in part and including by netting or set-off) (in each case, whether in cash, Common Stock, or following a merger event or other change of the Common Stock, other securities or property), or the satisfaction of any condition that would permit or require any of the foregoing, any Permitted Convertible Debt shall not constitute a prepayment of Indebtedness by Borrower for the purposes of this Section 7.4; provided that principal payments in cash (other than cash in lieu of fractional shares) shall only be allowed if the Redemption Conditions are satisfied in respect of netting servicessuch payment and at all times after such payment; provided further that, overdraft protections to the extent both (a) the aggregate amount of cash payable upon conversion or payment of any Permitted Convertible Debt (excluding any required payment of interest with respect to such Permitted Convertible Debt and otherwise excluding any payment of cash in connection with deposit accounts;
lieu of a fractional share due upon conversion thereof) exceeds the aggregate principal amount thereof and (gb) guaranties in the ordinary course such conversion or payment does not trigger or correspond to an exercise or early unwind or settlement of business a corresponding portion of the obligations Permitted Bond Hedge Transactions relating to such Permitted Convertible Debt (including, for the avoidance of suppliersdoubt, customersthe case where there is no Permitted Bond Hedge Transaction relating to such Permitted Convertible Debt), franchisees the payment of such excess cash shall not be permitted by the preceding sentence. Notwithstanding the foregoing, Borrower may repurchase, exchange or induce the conversion of Permitted Convertible Debt by delivery of shares of Common Stock and/or a different series of Permitted Convertible Debt and/or by payment of cash (in an amount that does not exceed the proceeds received by Borrower from the substantially concurrent issuance of Common Stock and/or Permitted Convertible Debt plus the net cash proceeds, if any, received by Borrower pursuant to the related exercise or early unwind or termination of the related Permitted Bond Hedge Transactions and licensees Permitted Warrant Transactions, if any, pursuant to and of Borrower and its Subsidiaries;the immediately following proviso).
Appears in 3 contracts
Sources: Loan and Security Agreement (Geron Corp), Loan and Security Agreement (Geron Corp), Loan and Security Agreement (Geron Corp)
Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except:
(a) the Obligations;
(b) Senior Notes in an aggregate principal amount not to exceed $4,350,000,000;
(c) Indebtedness of any Guarantor Subsidiary of Borrower to Borrower Company or to any other such Subsidiary Guarantor Subsidiary, or of Borrower Company to any of its SubsidiariesGuarantor Subsidiary; provided that provided, (i) all such Indebtedness, if owed to a Credit Party, Indebtedness shall be evidenced by the Intercompany Note or another promissory note and Subordination, and shall be subject to a First Priority Lien pursuant to the applicable Collateral DocumentPledge and Security Agreement, (ii) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment Payment in full Full of the all Obligations pursuant to the terms of a subordination agreement with respect to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties Intercompany Note and such Subsidiaries party to such Indebtedness Subordination, and (iii) any payment by any such Guarantor Subsidiary under any guaranty of the Obligations shall result in respect a pro tanto reduction of the amount of any Indebtedness owing owed by a such Guarantor Subsidiary that to Company or to any of its Subsidiaries for whose benefit such payment is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d)made;
(c) [Reserved]
(d) Indebtedness incurred by Borrower Holdings or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) customary indemnification or from customary guaranties or letters of credit, surety bonds, bonds or performance bonds or similar obligations securing the performance of Borrower Company or any such Subsidiary pursuant to such agreements, agreements in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower Holdings or any of its SubsidiariesSubsidiaries and customary and reasonable indemnity obligations entered into the ordinary course of business of a Credit Party pursuant to the terms of such Credit Party’s bylaws, operating agreement or other similar constituent documents;
(e) Indebtedness which that may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal or similar bonds or statutory obligations incurred in the ordinary course of business, and guarantee obligations in respect of any such Indebtedness;
(f) Indebtedness in respect of (i) netting services, overdraft protections and other services provided in connection with deposit accounts and (ii) unsecured Indebtedness in respect of corporate credit cards, p-cards and similar cards in an aggregate outstanding amount not to exceed $500,000 at any time, in each case, incurred in the ordinary course of business;
(fg) guaranties by Company of Indebtedness of a Guarantor Subsidiary or guaranties by a Subsidiary of Company of Indebtedness of Company or a Guarantor Subsidiary with respect, in each case, to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.1; provided, that if the Indebtedness that is being guaranteed is unsecured and/or subordinate to the Obligations (in payment or Lien priority), then such guaranties shall also be unsecured and/or subordinated to the Obligations to the same extent as such guaranteed Indebtedness;
(h) Indebtedness existing on the date hereof and described in Schedule 6.1, but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement, and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(i) Indebtedness in respect an aggregate amount not to exceed at any time $1,000,000 consisting of netting services(x) Capital Lease Obligations and (y) other purchase money Indebtedness; provided, overdraft protections and otherwise in the case of clause (x), that any such Indebtedness shall be secured only by the asset subject to such Capital Lease, and, in the case of clause (y), that any such Indebtedness shall (i) be secured only by the asset acquired in connection with deposit accountsthe incurrence of such Indebtedness and (ii) constitute not less than 100% of the aggregate consideration paid with respect to such asset;
(gj) guaranties obligations under Hedge Agreements permitted pursuant to Section 6.7;
(k) Indebtedness owed to insurance carriers consisting of unpaid premiums (not in excess of one year’s premium) and incurred in the ordinary course of business of the obligations Credit Parties;
(l) unsecured Subordinated Indebtedness issued by Holdigns to former officers, managers, and employees thereof, or to their respective estates, spouses or former spouses, in each case issued to such Persons upon the death or separation from employment of suppliers, customers, franchisees such person to finance the purchase or redemption of Capital Stock of Holdings so long as (i) no Default or Event of Default has occurred and licensees is continuing at the time of such issuance or would result from the incurrence of such Indebtedness and (ii) the aggregate amount of such Indebtedness does not to and exceed $500,000; and
(m) other unsecured Indebtedness of Borrower Holdings and its Subsidiaries;Subsidiaries (other than Indebtedness of the types listed in Section 6.1(a) – (l)) that is unsecured and subordinated to the Obligations in a manner satisfactory to Administrative Agent in its sole discretion and does not exceed an aggregate principal amount equal to $500,000. Notwithstanding anything to the contrary herein, any Subsidiary of the Borrower that is not a Guarantor shall not, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness for borrowed money, notes or bonds other than the Obligations (and with respect to any Subsidiaries organized in Italy, such Subsidiaries shall not, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness).
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (ONE Group Hospitality, Inc.), Credit and Guaranty Agreement (ONE Group Hospitality, Inc.)
Indebtedness. No Credit Party shallCreate, nor shall it permit any of its Subsidiaries toincur, assume, suffer to exist, guarantee, or otherwise become or remain, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except:
(a) Indebtedness evidenced by this Agreement and the Obligations;other Loan Documents, together with Indebtedness owed to Underlying Issuers with respect to Underlying Letters of Credit,
(b) Senior Notes Indebtedness set forth on Schedule 4.19 and any Refinancing Indebtedness in an aggregate principal amount not to exceed $4,350,000,000;respect of such Indebtedness,
(c) Permitted Purchase Money Indebtedness and any Refinancing Indebtedness in respect of such Indebtedness,
(d) endorsement of instruments or other payment items for deposit,
(e) Indebtedness composing Permitted Investments,
(f) guaranties by Borrower of Indebtedness of a Guarantor or guaranties by a Subsidiary of Borrower of Indebtedness of Borrower or a Guarantor with respect, in each case, to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.1,
(g) Indebtedness of any Subsidiary of Borrower Guarantor to Borrower or to any other such Subsidiary Guarantor, or of Borrower to any of its SubsidiariesGuarantor; provided that provided, (i) all such Indebtedness, if owed to a Credit Party, Indebtedness shall be evidenced by the Intercompany Note or another promissory note notes and all such notes shall be subject to a First Priority Lien pursuant to the applicable Collateral DocumentSecurity Agreement, (ii) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of a subordination agreement with respect to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness Intercompany Subordination Agreement, and (iii) any payment by any such Guarantor under any Guaranty shall result in respect a pro tanto reduction of the amount of any Indebtedness owing owed by a Subsidiary that is not a Credit Party such Guarantor to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d);
(d) Indebtedness incurred by Borrower or to any of its Subsidiaries arising from agreements providing for indemnificationwhose benefit such payment is made, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) or from guaranties or letters of credit, surety bonds, performance bonds or similar obligations securing the performance of Borrower or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or any of its Subsidiaries;and
(eh) Other Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal or similar obligations incurred in the ordinary course of business;
(f) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accounts;
(g) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees of and licensees to and of Borrower and its Subsidiaries;Subsidiaries which is unsecured and subordinated to the Obligations in a manner satisfactory to Agent in an aggregate amount not to exceed at any time $100,000.
Appears in 2 contracts
Sources: Credit Agreement (Servicesource International LLC), Credit Agreement (Servicesource International LLC)
Indebtedness. No Credit Party shallThe Company will not, nor shall will it permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or guarantyassume, or otherwise become or remain directly or indirectly liable with respect suffer to exist any Indebtedness, Indebtedness except:
(a) Indebtedness to the ObligationsLenders hereunder and under the other Loan Documents;
(b) Senior Notes Indebtedness outstanding on the date hereof including Indebtedness in an aggregate principal amount not excess of $1,000,000 that is required to exceed $4,350,000,000be listed on SCHEDULE 8.12 hereto (excluding however, the Indebtedness to be repaid with the proceeds of Loans hereunder, as indicated on said SCHEDULE 8.12, from and after the date of such repayment);
(c) Indebtedness of any Subsidiary (i) Subsidiaries of Borrower the Company to Borrower or any other such Subsidiary or of Borrower the Company, (ii) the Company to any of its Subsidiaries or (iii) of Subsidiaries to Subsidiaries; provided , PROVIDED, HOWEVER, that any Indebtedness of the Company to any of its Subsidiaries (i) all such Indebtednessother than the Subsidiary Guarantors and Genzyme Securities Corporation), if owed and any Indebtedness of any Subsidiary Guarantor or Genzyme Securities Corporation to a Credit Partyany of the Company's other Subsidiaries (other than the Subsidiary Guarantors and Genzyme Securities Corporation), shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral Document, subordination agreement unconditionally providing that: (iix) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured subordinate and subordinated subject in right of payment to the prior payment in full of the Obligations pursuant to Obligations; (y) that no payments shall be made on such Indebtedness, nor shall the terms holder of a subordination agreement such Indebtedness exercise any right or remedy with respect to such Indebtedness substantially Indebtedness, until payment and satisfaction in full of the form Obligations; and (z) notwithstanding clauses (x) and (y), payments may be made on account of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness and (iii) in respect UNLESS there has occurred an Event of any Indebtedness owing by a Subsidiary Default that is not a Credit Party to a Credit Party, continuing or such Indebtedness is permitted as payment(s) would result in an Investment under the proviso to Section 6.6(d)Event of Default;
(d) Indebtedness constituting Purchase Money Indebtedness or Capital Lease Obligations incurred by Borrower in the ordinary course of Company's or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) or from guaranties or letters of credit, surety bonds, performance bonds or similar obligations securing the performance of Borrower or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any Subsidiaries' business, assets or Subsidiary of Borrower or any of its Subsidiaries;
(e) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal under or similar in respect of currency exchange contracts or interest rate protection obligations incurred in the ordinary course of business;
(f) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accountsperformance bonds or letters of credit obtained and issued in the ordinary course of business, including letters of credit related to insurance associated with claims for work-related injuries;
(g) guaranties in the ordinary course of business Subordinated Debt;
(h) Indebtedness incurred to renew, extend, refinance or refund any Indebtedness expressly permitted by any of the obligations clauses of suppliers, customers, franchisees this Section 9.7; and
(i) additional Indebtedness of and licensees to and of Borrower the Company and its Subsidiaries;, including Indebtedness incurred to finance the construction of manufacturing facilities and the acquisition of the equipment for Genzyme (UK) Limited, up to but not exceeding ten percent (10%) of the book value of the Consolidated Tangible Assets, calculated in accordance with GAAP (in determining whether additional Indebtedness exceeds the ten percent (10%) maximum under this Section 9.7(i), any Indebtedness of the Company or any Subsidiary that is Guaranteed by the Company or any Subsidiary, collectively with the Indebtedness consisting of any Guarantee of such Subsidiary's or Company's Indebtedness, shall together be deemed a single item of Indebtedness (in the amount of the primary obligor's Indebtedness)).
Appears in 2 contracts
Sources: Credit Agreement (Genzyme Corp), Credit Agreement (Genzyme Corp)
Indebtedness. No Credit Party shallThe Borrower will not, nor shall it and will not permit any of its Subsidiaries Restricted Subsidiary to, directly or indirectlyincur, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect permit to exist any Indebtedness, except:
(a) Indebtedness existing on the ObligationsEffective Date and set forth on Schedule 6.01 and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(b) Senior Notes in an aggregate principal amount not to exceed $4,350,000,000Indebtedness created hereunder and under the other Loan Documents, including any Indebtedness created under Section 2.20 or 2.21 hereof;
(c) Indebtedness of any Subsidiary of the Borrower to any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower or any other such Subsidiary or of Borrower to any of its SubsidiariesRestricted Subsidiary; provided that (i) all such Indebtedness, if owed Indebtedness of any Restricted Subsidiary that is not a Subsidiary Loan Party owing to the Borrower or any Subsidiary Loan Party shall be subject to Section 6.04 and (ii) Indebtedness of any Loan Party that is owing to any Restricted Subsidiary that is not a Credit Party, Loan Party shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral Document, (ii) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of a subordination agreement with respect to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness and (iii) in respect of any Indebtedness owing by a Subsidiary that is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d)Note;
(d) Indebtedness incurred by 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 Subsidiaries arising from agreements providing for indemnification, adjustment business or the management of purchase price or similar obligations its liabilities (including Indebtedness consisting 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 deferred purchase price of property acquired in a Permitted Acquisition) or from guaranties or letters of credit, surety bonds, performance bonds or similar obligations securing the performance of Borrower or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or any of its SubsidiariesRestricted Subsidiary;
(e) Obligations in respect of Cash Management Services and other Indebtedness which may be deemed to exist pursuant to any guarantiesin respect of netting services, performanceautomatic clearing house arrangements, suretyemployees’ credit or purchase cards, statutoryoverdraft protections and similar arrangements, appeal or similar obligations in each case, incurred in the ordinary course of business;
(fi) Indebtedness of the Borrower and the Restricted Subsidiaries owed to (including obligations in respect of netting servicesletters of credit or bank guarantees, overdraft protections and otherwise banker’s acceptances, warehouse receipts or similar instruments for the benefit of) any Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Restricted Subsidiary, pursuant to reimbursement or indemnification obligations to such Person, in connection with deposit accounts;
(g) guaranties 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 the borrowing of money;
(i) Indebtedness of any Person that becomes a Restricted Subsidiary (or of any Person not previously a Restricted Subsidiary that is merged or consolidated with or into the Borrower or a Restricted Subsidiary) 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, (ii) Indebtedness incurred, issued or otherwise obtained to finance a Permitted Business Acquisition or similar Investment permitted by Section 6.04 and (iii) any 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 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 Indebtedness Amount;
(i) (i) Capitalized Lease Obligations, mortgage financings and purchase money Indebtedness incurred, issued or otherwise obtained by the Borrower or any Restricted Subsidiary prior to or within 270 days after the acquisition, construction, repair, replacement, expansion, lease or improvement of the respective asset in order to finance such acquisition, construction, repair, replacement, expansion, lease or improvement, (ii) any Permitted Refinancing Indebtedness in respect thereof, and (iii) 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, collectively, in 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 such time of incurrence, issuance or obtaining;
(j) Indebtedness arising from agreements of the Borrower or any 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 the extent such obligation or transaction is permitted by this Agreement;
(k) Indebtedness consisting of (x) the financing of insurance premiums or (y) take-or-pay obligations, termination fees or similar obligations contained in supply or manufacturing arrangements, in each case, in the ordinary course of business;
(l) to the extent constituting Indebtedness, all premium (if any), interest (including post-petition interest and capitalized interest), fees, expenses, charges and 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 Party, shall not exceed, at such time, the Non-Loan Party Indebtedness Amount;
(q) 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) 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 a Person that is subordinated to other Indebtedness of such Person shall be expressly subordinated to the Loan Document Obligations on terms not less favorable to the Lenders than the subordination 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 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 licensees 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 and (ii) unsecured Indebtedness in respect of intercompany obligations of the Borrower or any Restricted Subsidiary in respect of accounts payable incurred in connection with goods sold or services rendered in the ordinary course of business and 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, managers, consultants, directors and 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 Borrower, 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 not exceed, on such date, $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 its Subsidiaries;reclassify or later divide, classify or reclassify such item of Indebtedness (or any portion thereof) and will only be required to include the amount and type of such Indebtedness in one or more of the above clauses; provided that all Indebtedness outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause of Section 6.01(b). The accrual of interest, the accretion of accreted value and the payment of interest in the form of additional Indebtedness shall not be deemed to be an incurrence of Indebtedness for purposes of this Section 6.01.
Appears in 2 contracts
Sources: Credit Agreement (Blue Buffalo Pet Products, Inc.), Credit Agreement (Blue Buffalo Pet Products, Inc.)
Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except:except (the following, “Permitted Indebtedness”):
(a) the Obligations;
(b) Senior Notes in an aggregate principal amount not (i) Indebtedness of any U.S. Guarantor or U.S. Borrower owed to exceed $4,350,000,000;
any other U.S. Guarantor or U.S. Borrower, (cii) Indebtedness of European Borrower or any Non-U.S. Guarantor owed to any other European Borrower or any Non-U.S. Guarantor and (iii) to the extent such Indebtedness constitutes a permitted Investment pursuant to Section 6.6(j), Indebtedness of any Subsidiary of Borrower to Borrower or any other such Subsidiary or of Borrower Holdings that is not a Credit Party to any of its SubsidiariesCredit Party; provided provided, that (iA) in each case (1) all such Indebtedness, if owed to a Credit Party, Indebtedness shall be evidenced by the Intercompany Note or another promissory note and Notes, which shall be subject to a First Priority Lien pursuant to the applicable Pledge and Security Agreement or another Collateral Document, with respect to the Intercompany Note evidencing Indebtedness owed to a U.S. Subsidiary or U.S. Borrower, securing the Obligations of the U.S. Borrower and the Obligations of the European Borrower, and with respect to the Intercompany Note evidencing the Indebtedness owed to a Non-U.S. Subsidiary or a European Borrower, securing the Obligations of the European Borrower only (iisubject to Section 7.13) and (2) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable Intercompany Note, and (B) any payment by any such Guarantor Subsidiary under any guaranty of the Obligations shall result in a subordination agreement with pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to Borrower or to any of its Subsidiaries for whose benefit such payment is made; provided further that notwithstanding anything to the contrary in any Collateral Document, Intercompany Notes evidencing Indebtedness pursuant to clauses (i) and (ii) above shall not be required to be delivered to the Collateral Agent more frequently than once per Fiscal Quarter (or such other period of time deemed reasonably acceptable to the Collateral Agent);
(c) the Second Lien Term Loans owed under the Second Lien Credit Agreement in an aggregate principal amount not to exceed $150,000,000 plus any accrued interest, fees or expenses, and Indebtedness incurred to refinance, renew or replace such Indebtedness in whole or in part; provided that, (i) the terms and conditions of such Indebtedness, taken as a whole, are no less favorable in any material respect to the obligors or the Lenders thereon than the Second Lien Credit Agreement, (ii) such Indebtedness substantially in refinancing, renewal or replacement is incurred only by the form of Exhibit J-2 among Person who is the Credit Parties and such Subsidiaries party to such Indebtedness obligor on the Second Lien Term Loans being refinanced, renewed or replaced and (iii) in respect the average life to maturity thereof is greater than or equal to that of any Indebtedness owing by a Subsidiary that is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d)Second Lien Term Loans;
(d) Indebtedness in an aggregate principal amount not to exceed $100,000,000 (“Permitted Subordinated Debt”) that is (i) subordinated to the Obligations on terms customary at the time for high-yield subordinated debt securities issued in a public offering, (ii) matures after, and does not require any scheduled amortization or other scheduled payments of principal prior to, the maturity date of the Term Loans (it being understood that such Indebtedness may have mandatory prepayment, repurchase or redemptions provisions satisfying the requirement of clause (iii) hereof), (iii) has terms and conditions (other than interest rate, redemption premiums and subordination terms), taken as a whole, that are not materially less favorable to Borrowers as the terms and conditions customary at the time for high-yield subordinated debt securities issued in a public offering and (iv) is incurred by the U.S. Borrower and guaranteed only by the U.S. Credit Parties; provided that (1) both immediately prior and after giving effect to the incurrence thereof, (x) no Default shall exist or result therefrom and (y) Holdings will be in compliance with the covenants set forth in Section 6.7 and provided further that a certificate of a Responsible Officer delivered to Administrative Agent at least 10 days 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 Holdings has determined in good faith that such terms and conditions satisfy the requirements of this clause (c) shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless Administrative Agent notifies Holdings within 5 days of receipt of such certificate that it disagrees with such determination;
(e) Indebtedness incurred by Holdings or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) obligations, or from guaranties or letters of credit, surety bonds, bonds or performance bonds or similar obligations securing the performance of Borrower Holdings or any such Subsidiary of its Subsidiaries pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower Holdings or any of its Subsidiaries;
(ef) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal or similar obligations incurred in the ordinary course of business;
(fg) Indebtedness in respect of netting services, overdraft protections protections, cash management services and otherwise in connection with deposit accountsdeposit, securities and commodities accounts in the ordinary course of business;
(gh) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees of and licensees to and of Borrower Holdings and its Subsidiaries;
(i) guaranties (i) by U.S. Borrower or a U.S. Guarantor of Indebtedness of U.S. Borrower or a U.S. Guarantor, and (ii) by European Borrower or a Non-U.S. Guarantor of Indebtedness of the European Borrower or a Non-U.S. Guarantor, with respect, in each case, to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.1; provided, that in the case of (i) and (ii) that if the Indebtedness that is being guarantied is unsecured and/or subordinated to the Obligations, the guaranty shall also be unsecured and/or subordinated to the Obligations;
(j) Indebtedness described in Schedule 6.1, but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not
(A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(k) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an aggregate amount not to exceed at any time $30,000,000; provided, any such Indebtedness (i) shall be secured only by the asset acquired in connection with the incurrence of such Indebtedness, and (ii) shall constitute not less than 90% of the aggregate consideration paid with respect to such asset;
(i) Indebtedness of a Person or Indebtedness attaching to assets of a Person that, in either case, becomes a Subsidiary or Indebtedness attaching to assets that are acquired by Holdings or any of its Subsidiaries, in each case after the Closing Date as the result of a Permitted Acquisition, in an aggregate amount not to exceed $15,000,000 at any one time outstanding, provided that (x) 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 anticipation thereof and (y) such Indebtedness is not guaranteed in any respect by Holdings or any Subsidiary (other than by any such person that so becomes a Subsidiary), and (ii) any refinancing, refunding, renewal or extension of any Indebtedness specified in subclause (i) above, provided, that (1) the principal amount of any such Indebtedness is not increased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or extension, (2) the direct and contingent obligors with respect to such Indebtedness are not changed and (3) such Indebtedness shall not be secured by any assets other than the assets securing the Indebtedness being renewed, extended or refinanced; and
(m) other secured or unsecured Indebtedness of Holdings and its Subsidiaries including Indebtedness of Non-U.S. Subsidiaries in an aggregate amount not to exceed at any time $20,000,000; provided that no more than an aggregate amount of $10,000,000 of such Indebtedness at any time shall be secured.
Appears in 2 contracts
Sources: First Lien Credit and Guaranty Agreement (Arizona Chemical Ltd.), First Lien Credit and Guaranty Agreement (Arizona Chemical Ltd.)
Indebtedness. No Credit Party shallThe Borrowers shall not, nor shall it they permit any of its their Restricted Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except:
(a) the ObligationsSecured Obligations (including any Additional Term Loans and any Additional Revolving Loans);
(b) Senior Notes Indebtedness of any Borrower to any other Borrower or any Restricted Subsidiary and/or of any Restricted Subsidiary to any Borrower 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 a Loan Party to the extent resulting from an aggregate principal amount Investment, such Indebtedness shall be permitted as an Investment by Section 6.06; provided, further, that any Indebtedness of any Loan Party owing to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to exceed $4,350,000,000the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent);
(c) Indebtedness of any Subsidiary of Borrower to Borrower or any other such Subsidiary or of Borrower to any of its Subsidiaries; provided that (i) all such Indebtedness, if owed to a Credit Party, shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral Document, (ii) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of a subordination agreement with respect to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness and (iii) in respect of any Indebtedness owing by a Subsidiary that is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d)[reserved];
(d) Indebtedness incurred by Borrower or any of its Subsidiaries arising from agreements any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date or any other purchase of assets or Capital Stock, and Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) or arising from guaranties or guaranties, letters of credit, bank guaranties, surety bonds, performance bonds or similar obligations instruments securing the performance of any Borrower or any such Restricted Subsidiary pursuant to any such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or any of its Subsidiariesagreement;
(e) Indebtedness which may be deemed to exist of any Borrower and/or any Restricted Subsidiary (i) pursuant to any guarantiestenders, performancestatutory obligations, bids, leases, governmental contracts, trade contracts, surety, statutorystay, appeal customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
(f) Indebtedness of any Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including Banking Services Obligations and dealer incentive, supplier finance or similar programs;
(i) Guarantees by any Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of any Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and 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;
(fh) Guarantees by any Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of any Borrower and/or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided, that in respect the case of netting servicesany Guarantee by any Loan Party of the obligations of any non-Loan Party, overdraft protections and otherwise in connection with deposit accountsthe related Investment is permitted under Section 6.06;
(gi) guaranties Indebtedness of any Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and described on Schedule 6.01;
(j) Indebtedness of Restricted Subsidiaries that are not Loan Parties; provided, that the aggregate outstanding principal amount of such Indebtedness shall not exceed the greater of US$21,000,000 and 20% of Consolidated Adjusted EBITDA of the Borrowers and their Restricted Subsidiaries as of the last day of the most recently ended Test Period;
(k) Indebtedness of any 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 any Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of any Borrower and/or any Restricted Subsidiary with respect to Capital Leases and purchase money Indebtedness incurred prior to or within 270 days of the obligations acquisition, lease, completion of suppliersconstruction, customersrepair of, franchisees replacement, improvement to or installation of assets in an aggregate outstanding principal amount not to exceed the greater of US$32,000,000 and licensees 30% of Consolidated Adjusted EBITDA of the Borrowers and their Restricted Subsidiaries as of the last day of the most recently ended Test Period;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition permitted hereunder after the Closing Date; provided, that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation thereof, (ii) no Event of Default under Sections 7.01(a), (f), or (g) exists or would result after giving pro forma effect to such acquisition, (iii) the Borrowers are in compliance with Section 6.15(a) (whether or not then in effect), and (iv) (A) if such Indebtedness is secured by a Lien on the Collateral that is pari passu with the Lien securing the Secured Obligations on the Closing Date, the First Lien Leverage Ratio would not exceed 5.00:1.00, (B) if such Indebtedness is secured by a Lien on the Collateral that is junior to the Lien securing the Secured Obligations on the Closing Date, the Secured Leverage Ratio would not exceed 6.50:1.00 and (C) if such Indebtedness is unsecured, the Total Leverage Ratio would not exceed 6.50:1.00, in each case of clauses (ii)(A) through (C), calculated on a Pro Forma Basis;
(o) Indebtedness consisting of promissory notes issued by any 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, any Borrower or any subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of any Parent Company permitted by Section 6.04(a);
(p) the Borrowers and its Subsidiariestheir Restricted Subsidiaries may become and remain liable for any Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (j), (m), (n), (q), (r), (u), (w), (x), (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 proceeds of such Refinancing Indebtedness are promptly applied to permanently repay in whole or in part the Indebtedness refinanced, refunded or replaced and the principal amount of such Refinancing Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided, that (1) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this Section 6.01(p) (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (2) if such additional Indebtedness is secured, the Lien securing such Refinancing Indebtedness is permitted under Section 6.02),
(ii) in the case of Refinancing Indebtedness with respect to clauses (a), (q), (r), (w) and (z) (other than Customary Bridge Loans), (A) such Refinancing Indebtedness has a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Latest Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) other than with respect to revolving Indebtedness, a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced,
(iii) the covenants and events of default applicable to any Refinancing Indebtedness with an original principal amount in excess of the Threshold Amount (excluding pricing, fees, premiums, rate floors, optional prepayment or redemption terms (and, if applicable, subordination terms) and, with respect to Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) above, security), are either (A) substantially identical to, or not materially more favorable taken as a whole (as reasonably determined by the Borrower Representative) to the lenders providing such Refinancing Indebtedness than those applicable to the Indebtedness being refinanced, refunded or replaced (other than any covenants or events of default (x) applicable only to periods after the Latest Maturity Date as of such date or (y) more favorable to the lenders thereunder and added for the benefit of such Indebtedness) or (B) taken as a whole, reflect then-current market terms and conditions (as determined by the Borrower Representative in good faith), taken as a whole, at the time of incurrence or issuance for the applicable type of Indebtedness,
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (j), (m), (q), (r) (u), (w), (x) and (y) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause (in other words the caps in such clauses shall apply in the aggregate to such Refinancing Indebtedness and any Indebtedness outstanding under such clauses),
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 (it being understood that Holdings may not be the primary obligor of the applicable Refinancing Indebtedness if Holdings was not the primary obligor on the relevant refinanced Indebtedness), (A) such Refinancing Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), (B) such Refinancing Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01 and (C) if the Indebtedness being refinanced, refunded or replaced was originally contractually subordinated to the Obligations in right of payment (or the Liens securing such Indebtedness were originally contractually subordinated to the Liens on the Collateral securing the Secured Obligations), such Indebtedness is contractually subordinated to the Obligations in right of payment (or the Liens securing such Refinancing Indebtedness are subordinated to the Liens on the Collateral securing the Secured Obligations) on terms not materially less favorable (as reasonably determined by the Borrower Representative), taken as a whole, to the Lenders than those applicable to the Indebtedness (or Liens, as applicable) being refinanced, refunded or replaced, taken as a whole, and
(vi) in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01, (A) such Refinancing Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided, that any such Refinancing Indebtedness that is pari passu or junior with respect to the Collateral shall be subject to a customary intercreditor agreement or an intercreditor agreement on terms reasonably satisfactory to the Administrative Agent and the Borrower Representative, (B) if the Indebtedness being refinanced, refunded or replaced is secured, it is not secured by any assets other than the Collateral, (C) if the Indebtedness being refinanced, refunded or replaced is Guaranteed, it shall not be Guaranteed by any Person other than a Loan Party and (D) if not pari passu, 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 Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any voluntary or mandatory prepayment in respect of the Term Loans (and any Additional Term Loans then subject to ratable repayment requirements), in each case, as the Borrower Representative and the relevant lender may agree;
(q) Indebtedness incurred to finance acquisitions or similar Investments permitted hereunder after the Closing Date (the Indebtedness incurred pursuant to this Section 6.01(q), “Incurred Acquisition Debt”), in an unlimited amount so long as (A) if such Indebtedness is secured by a Lien on the Collateral that is pari passu with the Lien securing the Secured Obligations on the Closing Date, the First Lien Leverage Ratio would not exceed 5.00:1.00, (B) if such Indebtedness is secured by a Lien on the Collateral that is junior to the Lien securing the Secured Obligations on the Closing Date, the Secured Leverage Ratio would not exceed 6:50:1.00 and (C) if such Indebtedness is unsecured, at the Borrower Representative’s option, either (x) the Total Leverage Ratio would not exceed 6.50:1.00 or (y) the Consolidated Cash Interest Coverage Ratio would not be less than 2.00:1.00, in each case of clauses (A) through (C), calculated on a Pro Forma Basis, including the application of the proceeds thereof (without “netting” the Cash proceeds of such Indebtedness) as of the most recently ended Test Period); provided, that (1) any such Indebtedness that is subordinated to the Obligations in right of payment or security or that is pari passu in right of security and not incurred under this Agreement shall be subject to intercreditor arrangements that are reasonably satisfactory to the Borrower Representative and the Administrative Agent, (2) such Indebtedness does not mature or require any scheduled amortization or scheduled payment of principal or require any mandatory redemption, repurchase, repayment or sinking fund obligation (other than (I) payments as part of an “applicable high yield discount obligation” catch-up payment, (II) customary offers to repurchase in connection with any change of control, Disposition or casualty event and (III) customary acceleration rights after an event of default), in each case, prior to the date which is 91 days after the Latest Maturity Date as of the date of incurrence thereof and (
Appears in 2 contracts
Sources: Credit Agreement (Knowlton Development Corp Inc), Credit Agreement (Knowlton Development Parent, Inc.)
Indebtedness. No Credit Party shallThe Borrowers and the Subsidiary Guarantors shall not, nor shall it they permit any of its their Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except:
(a) the Obligations;
(b) Senior Notes in an aggregate principal amount not Indebtedness of either Borrower to exceed $4,350,000,000;
(c) Indebtedness any Subsidiary and of any Subsidiary of Borrower to either Borrower or any other such Subsidiary or of Borrower to any of its SubsidiariesSubsidiary; provided that in the case of any Indebtedness of a Subsidiary that is not a Loan Party owing to a Loan Party, such Indebtedness shall (ix) be permitted as an Investment by Section 6.07 or (y) be of the type described in clause (ii) of the parenthetical under clause (c) of the definition of “Investment”; provided, further, that all such Indebtedness, if owed to a Credit Party, Indebtedness shall be evidenced by the an Intercompany Note or another promissory note (pursuant to which all such Indebtedness of any Loan Party to any Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party on the terms set forth therein) and shall be subject to a First Priority Lien pursuant to the applicable Collateral Document, Pledge and Security Agreement;
(iic) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of a subordination agreement with respect to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness and (iii) in respect of any Indebtedness owing by a Subsidiary that is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d)Prepetition Indebtedness;
(d) Indebtedness incurred by Borrower or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including contingent earnout obligations) incurred in connection with asset sales or other sales or other purchases of assets, in each case permitted under the Agreement, or Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) or arising from guaranties or guaranties, letters of credit, surety bonds, bonds or performance bonds or similar obligations securing the performance of any such Borrower or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or any of its Subsidiaries;
(e) Indebtedness which may be deemed to exist pursuant to any guarantiesperformance and completion guaranties or customs, stay, performance, bid, surety, statutory, appeal or other similar obligations, in each case incurred in the ordinary course of business or in respect of any letters of credit related thereto;
(f) Indebtedness incurred in the ordinary course of business in respect of netting services, overdraft protections, automated clearing-house arrangements, employee credit card programs and similar arrangements and otherwise in connection with Cash management and Deposit Accounts, including, for the avoidance of doubt, to the extent constituting Indebtedness, intercompany obligations of the Loan Parties or any of their Subsidiaries in connection with Cash management operations with respect to such Subsidiaries in the ordinary course of business and consistent with past practice;
(g) (x) guaranties of the obligations of suppliers, customers, franchisees and licensees in the ordinary course of business and consistent with past practice as in effect on the Closing Date and (y) Indebtedness incurred in the ordinary course of business in respect of obligations of either Borrower or any Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services;
(h) Guarantees by either Borrower or any Subsidiary of Indebtedness or other obligations of either Borrower or any Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or obligations not prohibited by this Agreement; provided that (A) in the case of any Guarantees by a Loan Party of the obligations of a non-Loan Party, the related Investment is permitted under Section 6.07 (other than Section 6.07(j)), (B) no Guarantee by any Subsidiary of any Indebtedness permitted under Section 6.01(c) shall be permitted unless the guaranteeing party shall have also provided a Guarantee of the Guaranteed Obligations on the terms set forth herein and (C) if the Indebtedness being Guaranteed is subordinated to the Obligations, such Guarantee shall be subordinated to the Obligations on terms at least as favorable (as reasonably determined by the Borrower Agent) to the Lenders as those contained in the subordination of such Indebtedness;
(i) Indebtedness existing on the Closing Date and described in Schedule 6.01(i); provided that in the case of Indebtedness of either Borrower to any Subsidiary and of any Subsidiary to either Borrower or any other Subsidiary, subject to Section 5.14, all such Indebtedness shall be evidenced by an Intercompany Note (pursuant to which all such Indebtedness of any Loan Party to any Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party on the terms set forth therein) and shall be subject to a First Priority Lien pursuant to the Pledge and Security Agreement;
(j) Indebtedness of Foreign Subsidiaries that are not Loan Parties under local bilateral credit facilities for working capital and general corporate purposes in an aggregate principal amount at any time outstanding not to exceed $1,000,000;
(k) Indebtedness of Foreign Subsidiaries that are not Loan Parties to either Borrower or any other Subsidiary incurred in the ordinary course of business and consistent with past practice; provided that the incurrence of any such Indebtedness pursuant to this clause (k) is contemplated in and consistent with the Approved Budget;
(l) 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;
(fm) Indebtedness in with respect of netting services, overdraft protections to Capital Leases and otherwise in connection with deposit accounts;
(g) guaranties purchase money Indebtedness incurred in the ordinary course of business prior to or within 270 days of the obligations acquisition or lease or completion of suppliersconstruction, customersrepair of, franchisees improvement to or installation of and licensees the assets acquired in connection with the incurrence of such Indebtedness in an aggregate principal amount at any time outstanding not to and exceed $5,000,000;
(n) [Reserved];
(o) [Reserved];
(p) [Reserved];
(q) [Reserved];
(r) [Reserved].
(s) Indebtedness under any Derivative Transaction entered into for the purpose of hedging risks associated with the Borrower Agent’s and its Subsidiaries’ operations and not for speculative purposes;
(t) contingent obligations in respect of corporate leases assigned, sold or otherwise transferred or retail stores sold in a transaction permitted under Section 6.08 as set forth on Schedule 6.01(t); provided, further, that such contingent obligations arise in respect of any assignment, sale or transfer made in compliance with Section 5.17(c);
(u) Indebtedness at any time outstanding in an aggregate principal amount not to exceed $1,000,000;
(v) [Reserved];
(w) [Reserved];
(x) [Reserved];
(y) [Reserved];
(z) Subject to Section 6.19, if applicable, Indebtedness (including obligations in respect of letters of credit or bank guarantees or similar instruments with respect to such Indebtedness) incurred in respect of workers compensation claims, unemployment insurance (including premiums related thereto), other types of social security, pension obligations, vacation pay, health, disability or other employee benefits;
(aa) [Reserved];
(bb) Subject to Section 6.19, Indebtedness representing deferred compensation to directors, officers, employees, members of management and consultants of any Holding Company, the Borrowers or any Subsidiary in the ordinary course of business;
(cc) [Reserved];
(dd) [Reserved];
(ee) [Reserved]; and
(ff) without duplications 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 hereunder. For purposes of determining compliance with any Dollar-denominated restriction on the incurrence of Indebtedness, the Dollar-equivalent principal amount of Indebtedness denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred, in the case of term debt, or first committed, in the case of revolving credit debt; provided that if such Indebtedness is incurred to extend, replace, refund, refinance, renew or defease other Indebtedness denominated in a foreign currency, and such extension, replacement, refunding, refinancing, renewal or defeasance 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 extension, replacement, refunding, refinancing, renewal or defeasance, 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 the principal amount of such Indebtedness being extended, replaced, refunded, refinanced, renewed or defeased, plus the aggregate amount of fees, underwriting discounts, premiums (including tender premiums) and other costs and expenses (including original issue discount) incurred in connection with such refinancing.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (Party City Holdco Inc.), Restructuring Support Agreement (Party City Holdco Inc.)
Indebtedness. No Credit Party Neither the Parent, the Borrower, nor any Property Subsidiary (at such time as it owns an Acceptable Unencumbered Property in the Unencumbered Pool) shall, nor shall it permit any without the prior written consent of its Subsidiaries to, directly or indirectlythe Required Lenders, create, incur, assume assume, guarantee or guarantybe or remain liable, contingently or otherwise become or remain directly or indirectly liable with respect to any IndebtednessIndebtedness on a recourse basis, except:
: (a) Indebtedness of the Obligations;
Parent or the Borrower under this Agreement, any Bond Facility or the Term Facility; (b) Senior Notes Indebtedness of the Parent, the Borrower or a Subsidiary (other than a Property Subsidiary at such time as it owns an Acceptable Unencumbered Property in an aggregate principal amount the Unencumbered Pool) which does not to exceed $4,350,000,000;
violate the provisions of Section 5.02; (c) with respect to the Parent, the Borrower or a Subsidiary (other than a Property Subsidiary at such time as it owns an Acceptable Unencumbered Property in the Unencumbered Pool), other Indebtedness solely to the extent that the creation, incurrence or assumption thereof would not result in a Default under the terms of any this Agreement; and (d) with respect to the Borrower, the Parent or a Subsidiary of Borrower (other than a Property Subsidiary at such time as it owns an Acceptable Unencumbered Property in the Unencumbered Pool), Indebtedness whose recourse is solely for so-called “bad-boy” acts, including without limitation, (i) failure to Borrower account for a tenant’s security deposits, if any, for rent or any other such Subsidiary or payment collected by a borrower from a tenant under the lease, all in accordance with the provisions of Borrower to any of its Subsidiaries; provided that (i) all such Indebtedness, if owed to a Credit Party, shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral Documentloan documents, (ii) all such Indebtedness owing by fraud or a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of a subordination agreement with respect to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness and (iii) in respect of any Indebtedness owing by a Subsidiary that is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d);
(d) Indebtedness incurred material misrepresentation made by Borrower or any Guarantor, or the holders of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price beneficial or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired ownership interests in a Permitted Acquisition) or from guaranties or letters of credit, surety bonds, performance bonds or similar obligations securing the performance of such Borrower or any such Subsidiary pursuant to such agreementsGuarantor, in connection with Permitted Acquisitions or permitted dispositions of the financing evidenced by the applicable loan documents; (iii) any business, assets or Subsidiary of attempt by Borrower or any Guarantor 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 its Subsidiaries;
(e) Indebtedness which may be deemed to exist pursuant any insurance proceeds or condemnation awards relating to any guaranties, performance, surety, statutory, appeal Real Property; (v) voluntary or similar obligations incurred involuntary bankruptcy by Borrower or any Guarantor; and (vi) any environmental matter(s) affecting any Real Property which is introduced or caused by Borrower or any Guarantor or any holder of a beneficial or ownership interest in the ordinary course of business;
(f) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accounts;
(g) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees of and licensees to and of Borrower and its Subsidiaries;or any Guarantor.
Appears in 2 contracts
Sources: Credit Agreement (Education Realty Operating Partnership L P), Credit Agreement (Education Realty Operating Partnership L P)
Indebtedness. No Credit Party shallThe Borrowers and the Subsidiary Guarantors shall not, nor shall it they permit any of its their Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except:
(a) the Secured Obligations;
(b) Senior Notes in an aggregate principal amount not to exceed $4,350,000,000;
(c) Indebtedness of any Subsidiary of Borrower to any Subsidiary and of any Subsidiary to any Borrower or any other such Subsidiary or of Borrower to any of its SubsidiariesSubsidiary; provided that in the case of any Indebtedness of a Subsidiary that is not a Loan Party owing to a Loan Party, such Indebtedness shall (ix) be permitted as an Investment by Section 6.07 or (y) be of the type described in clause (ii) of the parenthetical under clause (c) of the definition of “Investment”; provided, further, that (A) all such Indebtedness, if owed to a Credit Party, Indebtedness shall be evidenced by the an Intercompany Note or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral Document, Pledge and Security Agreement and (iiB) all such Indebtedness owing by a Credit of any Loan Party to a any Subsidiary that is not a Credit Loan Party shall must be unsecured and expressly subordinated in right of payment to the payment in full Obligations of the Obligations pursuant such Loan Party on terms reasonably acceptable to the terms of a subordination agreement with respect to such Indebtedness substantially in Administrative Agent;
(c) the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness and (iii) in respect of any Indebtedness owing by a Subsidiary that is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d)Senior Notes;
(d) Indebtedness incurred by Borrower or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including contingent earnout obligations) incurred in connection with asset sales or other sales or Permitted Acquisitions or other purchases of assets, or Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) or arising from guaranties or guaranties, letters of credit, surety bonds, bonds or performance bonds or similar obligations securing the performance of any such Borrower or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or any of its Subsidiaries;
(e) Indebtedness which may be deemed to exist pursuant to any guarantiesperformance and completion guaranties or customs, stay, performance, bid, surety, statutory, appeal or other similar obligations incurred in the ordinary course of business or in respect of any letters of credit related thereto;
(f) Indebtedness in respect of Banking Services Obligations and other netting services, overdraft protections, automated clearing-house arrangements, employee credit card programs and similar arrangements and otherwise in connection with Cash management and Deposit Accounts;
(g) (x) guaranties of the obligations of suppliers, customers, franchisees and licensees in the ordinary course of business and consistent with past practice as in effect on the Closing Date and (y) Indebtedness incurred in the ordinary course of business in respect of obligations of any Borrower or any Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services;
(h) Guarantees by any Borrower or any Subsidiary of Indebtedness or other obligations of any Borrower or any Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or obligations not prohibited by this Agreement; provided that (A) in the case of any Guarantees by a Loan Party of the obligations of a non-Loan Party the related Investment is permitted under Section 6.07 (B) no Guarantee by any Subsidiary of any Indebtedness permitted under Sections 6.01(c), (w), and (y) shall be permitted unless the guaranteeing party shall have also provided a Guarantee of the Guaranteed Obligations on the terms set forth herein, (C) if the Indebtedness being Guaranteed is subordinated to the Obligations, such Guarantee shall be subordinated to the Obligations on terms at least as favorable (as reasonably determined by the Borrower Agent) to the Lenders as those contained in the subordination of such Indebtedness and (D) any Guarantee by a Subsidiary that is not a Loan Party of any Indebtedness permitted under Sections 6.01(r) and (v) shall only be permitted if such Guarantee meets the requirements of such Sections;
(i) Indebtedness existing on the First Amendment Effective Date and described in Schedule 6.01(i); provided, that, in the case of Indebtedness of either Borrower to any Subsidiary and of any Subsidiary to either Borrower or any other Subsidiary, subject to Section 5.13, (A) all such Indebtedness shall be evidenced by an Intercompany Note and shall be subject to a First Priority Lien pursuant to the Pledge and Security Agreement (pursuant to which all such Indebtedness of any Loan Party to any Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party on the terms set forth therein);
(j) Indebtedness of Subsidiaries that are not Loan Parties; provided that the aggregate outstanding principal amount of such Indebtedness at any time outstanding shall not exceed the greater of $100,000,000 and 3.00% of the Consolidated Total Assets as of the last day of the last Test Period for which financial statements most recently have been delivered pursuant to Section 5.01;
(k) [reserved];
(l) 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;
(fm) Indebtedness with respect to Capital Leases and purchase money Indebtedness incurred prior to or within 270 days of the acquisition or lease or completion of construction, repair of, improvement to or installation of the assets acquired in connection with the incurrence of such Indebtedness in an aggregate principal amount at any time outstanding not to exceed the greater of $65,000,000 and 2.00% of Consolidated Total Assets as of the last day of the last Test Period for which financial statements most recently have been delivered pursuant to Section 5.01;
(n) Indebtedness of a Person that becomes a Subsidiary or Indebtedness assumed in connection with an acquisition permitted hereunder after the Closing Date; provided that (i) such Indebtedness existed at the time such Person became a Subsidiary or the assets subject to such Indebtedness were acquired and was not created in anticipation thereof, (ii) no Event of Default then exists or would result therefrom, (iii) the Borrowers and their Subsidiaries shall be in compliance on a Pro Forma Basis with the Financial Covenant (whether or not then in effect), (iv) the Total Leverage Ratio would not exceed 6.00:1.00 calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 and (v) the Borrower Agent shall have delivered a certificate of a Responsible Officer of the Borrower Agent to the Administrative Agent certifying as to compliance with the requirements of clauses (i) through (iv) of this clause (n);
(o) Indebtedness consisting of unsecured subordinated promissory notes in form and in substance reasonably acceptable to the Administrative Agent, issued by any Borrower to any stockholders of any Parent Company or any current or former directors, officers, employees, members of management or consultants of any Parent Company, any Borrower or any Subsidiary (or their Immediate Family Members) and not guaranteed by any Subsidiary of Holdings, to finance the purchase or redemption of Capital Stock of any Parent Company permitted by Section 6.05(a);
(p) the Borrowers and their Subsidiaries may become and remain liable for any Indebtedness replacing, refunding or refinancing any Indebtedness permitted under clauses (c), (i), (n), (q), (r), (v) and (y) of this Section 6.01 and any subsequent Refinancing Indebtedness in respect thereof (in any case, “Refinancing Indebtedness”); provided that (i) the principal amount of netting servicessuch Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, overdraft protections refunded or replaced, except (A) by an amount equal to unpaid accrued interest and otherwise premiums (including tender premiums) thereon plus other reasonable and customary fees and expenses (including upfront fees and original issue discount) reasonably incurred in connection with deposit accountssuch refinancing or replacement, (B) by an amount equal to any existing commitments unutilized thereunder and (C) by additional amounts permitted to be incurred pursuant to this Section 6.01 (so long as such additional Indebtedness meets the other applicable requirements of this definition and, if secured, Section 6.02), (ii) other than in the case of Refinancing Indebtedness with respect to clause (i), such Indebtedness has a final maturity on or later than (and, in the case of any revolving Indebtedness, shall not require mandatory commitment reductions prior to) the final maturity of the Indebtedness being refinanced, refunded or replaced and, other than with respect to any revolving Indebtedness, a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced, (iii) the terms of such Indebtedness (excluding pricing, fees, premiums, rate floors, optional prepayment or redemption terms (and, if applicable, subordination terms) and, with respect to clauses (q), (v) and (y) (in each case, if applicable), security), are not, taken as a whole (as reasonably determined by the Borrower Agent), more favorable to the lenders providing such indebtedness than those applicable to the Indebtedness being refinanced, refunded or replaced (other than any covenants or any other provisions applicable only to periods after the Maturity Date (or, solely in the case of clauses (c), (n), (q), (v) or (y), any covenants or provisions which are on then current market terms for such type of Indebtedness), (iv) such Indebtedness is secured only by Permitted Liens of the same or lower priority as the Liens securing the Indebtedness being refinanced, refunded or replaced at the time of such refinancing, refunding or replacement (it being understood, however, that such Indebtedness may go from being secured to being unsecured), (v) such Indebtedness is incurred by any Borrower or its Subsidiary that is the obligor on the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01 and Section 6.07, (vi) if the Indebtedness being refinanced, refunded or replaced was originally contractually subordinated to the Obligations in right of payment (or the Liens securing such Indebtedness were originally contractually subordinated to the Collateral), such Indebtedness is contractually subordinated to the Obligations in right of payment (or the Liens securing such Indebtedness shall be subordinated to the Collateral) on terms not less favorable to the Lenders than those applicable to the Indebtedness (or Liens, as applicable) being refinanced, refunded or replaced, taken as a whole, (vii) Indebtedness of any Borrower or any Subsidiary shall not refinance Indebtedness of an Unrestricted Subsidiary, (viii) as of the date of incurring such Indebtedness and after giving effect thereto, no Event of Default shall exist or have occurred and be continuing and (ix) in the case of clause (y), if such Indebtedness being refinanced, refunded or replaced is Guaranteed, it shall not be Guaranteed by any Person other than Holdings and the Subsidiary Guarantors;
(gq) guaranties Indebtedness incurred to finance an acquisition permitted hereunder after the Closing Date; provided that (i) no Event of Default then exists or would result therefrom, (ii) such Indebtedness shall not mature or require any payment of principal, in each case, prior to the ordinary course of business date which is 91 days after the Maturity Date, (iii) the Borrowers and their Subsidiaries shall be in compliance on a Pro Forma Basis with the Financial covenant (whether or not then in effect), (iv) the Total Leverage Ratio would not exceed 6.00:1.00 calculated on a Pro Forma Basis as of the obligations last day of suppliersthe most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 and (v) the Borrower Agent shall have delivered a certificate of a Responsible Officer of the Borrower Agent to the Administrative Agent certifying as to compliance with the requirements of clauses (i) through (iv) of this clause (q);
(r) senior or subordinated unsecured Indebtedness of the Borrower Agent or any Subsidiary, customersso long as, franchisees after giving effect thereto, (A) no Default or Event of Default has occurred and licensees is continuing at the time of the incurrence thereof, (B) the Total Leverage Ratio would not exceed 6.00:1.00 calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 and (C) the Borrower Agent shall have delivered a certificate of a Responsible Officer of the Borrower Agent to the Administrative Agent certifying as to compliance with the requirements of clauses (A) and (B) of this clause (r); provided that (x) any such Indebtedness shall not mature or require any scheduled amortization or scheduled payments of principal and is not subject to mandatory redemption, repurchase, repayment or sinking fund obligation (other than AHYDO payments, customary offers to repurchase on a change of control, asset sale or casualty event and customary acceleration rights after an event of default), in each case, prior to the date that is 91 days after the Maturity Date, (y) the terms of such Indebtedness (excluding pricing, fees, rate floors, optional prepayment or redemption terms (and, if applicable, subordination terms)), are not, taken as a whole (as reasonably determined by the Borrower Agent), materially more favorable to the lenders providing such Indebtedness than those applicable to the Senior Notes (other than any covenants or any other provisions applicable only to periods after the Maturity Date) and (z) with respect to Indebtedness incurred under this clause (r) by a non-Loan Party, the aggregate outstanding principal amount of such Indebtedness of Subsidiaries that are not Loan Parties, when aggregated with the aggregate outstanding principal amount of all Indebtedness of non-Loan Parties under Section 6.01(v) shall not exceed, the greater of $100,000,000 and 3.00% of the Consolidated Total Assets as of the last day of the last Test Period for which financial statements have been delivered pursuant to Section 5.01;
(s) Indebtedness under any Derivative Transaction entered into for the purpose of hedging risks associated with the Borrower Agent’s and its Subsidiaries’ operations and not for speculative purposes;
(t) contingent obligations in respect of corporate leases assigned, sold or otherwise transferred (i) as set forth on Schedule 6.01(t) or (ii) incurred or created after the Closing Date in connection with the sale of retail stores; provided that in the case of clause (ii) above all such contingent obligations shall be unsecured and shall not permit a cross-default to this Agreement;
(u) Indebtedness at any time outstanding in an aggregate principal amount not to exceed the greater of $150,000,000 and 4.50% of the Consolidated Total Assets as of the last day of the last Test Period for which financial statements most recently have been delivered pursuant to Section 5.01;
(v) Indebtedness so long as the Payment Conditions are satisfied on a Pro Forma Basis; provided that (i) except in the case of any such Indebtedness secured by Permitted Liens, then such Indebtedness shall not mature or require any scheduled amortization or scheduled payments of principal and shall not be subject to mandatory redemption, repurchase, repayment or sinking fund obligation (other than AHYDO payments, customary offers to repurchase on a change of control, asset sale or casualty event and customary acceleration rights after an event of default), in each case, prior to the date which is 91 days after the Maturity Date and (ii) the aggregate outstanding principal amount of such Indebtedness of Subsidiaries that are not Loan Parties shall not exceed, together with the aggregate outstanding principal amount of all Indebtedness of non-Loan Parties incurred pursuant to Section 6.01(r), the greater of $100,000,000 and 3.00% of the Consolidated Total Assets as of the last day of the last Test Period for which financial statements have been delivered pursuant to Section 5.01 at any one time outstanding.
(w) Indebtedness incurred in respect of the Term Loan Facility in an aggregate principal amount that does not exceed $1,340,000,000 at any time outstanding; provided that (A) such amount may be increased by the aggregate principal amount of any Incr
Appears in 2 contracts
Sources: Abl Credit Agreement (Party City Holdco Inc.), Abl Credit Agreement (Party City Holdco Inc.)
Indebtedness. No Credit Party shall, nor shall it permit The Subscriber acknowledges that the Fund may incur indebtedness at any of its Subsidiaries totime and from time to time, directly or indirectlyindirectly through one or more subsidiaries (or series of subsidiaries) to borrow against the Subscriber’s Capital Commitments, createto finance investments, incurfor working capital, assume for expenses, for general corporate purposes (including to pay dividends or guarantydistributions) and to warehouse loans, including without limitation, one or more credit facilities to finance its investments and for other permissible activities. Those facilities may be secured by an assignment by way of security, pledge, charge, mortgage or other security interest, as the case may be, of or in (A) the Undrawn Capital Commitments, the proceeds of Drawdown Purchases and/or Catch-Up Purchases and the right to receive capital contributions from the Subscriber and Other Investors, (B) the Fund’s right to make drawdowns on those Capital Commitments, deliver Drawdown Notices and receive the proceeds of Drawdown Purchases and/or Catch-Up Purchases (including any powers of attorney or other delegation of the right to deliver Drawdown Notices), and/or (C) any deposit or other account into which the proceeds of Drawdown Purchases or Catch-Up Purchases will be deposited, and all claims, rights and interests that the Fund may have relating to or arising from clause (A), clause (B) or this clause (C) (including the right to exercise any remedies of the Fund under or related to this Subscription Agreement in respect of any such Drawdown Notice or Drawdown Purchase or Catch-Up Purchase), which may be granted to a lender or an agent for such a lender pursuant to any loan or security documentation entered into between the Fund and any lender (any such facility described in this sentence, a “Subscription Facility”). The Subscriber may, upon request by the Fund or the lender (if authorized to make such request under the relevant security documentation), be required to acknowledge the existence of a subscription credit facility, confirm the terms of the Subscriber’s Capital Commitment and the amount of its Unfunded Capital Commitment to the lender, to honor capital calls made by the lender or other credit party, to provide financial information reasonably requested by the lender and to execute other documents as may be reasonably requested in connection with obtaining such a facility. In connection with any such facility, the Subscriber agrees and acknowledges the following, for the benefit of the lenders: (1) it is and shall remain absolutely and unconditionally obligated to make Drawdown Purchases and/or Catch-Up Purchases pursuant to Section 3 (including, without limitation, those required as a result of the failure of any Other Investor to advance funds with respect to a Drawdown Notice made pursuant to a Capital Commitment with the Other Investor), pro rata among all non-Defaulting Shareholders (as defined below) based on their respective Capital Commitments and not in excess of the Subscriber’s Capital Commitment, without defense, counterclaim or offset (including without limitation any defense of fraud or mistake, or otherwise become any defense under Section 365 of the U.S. Bankruptcy Code but excluding, for the avoidance of doubt, any defense available under this Subscription Agreement), all of which will, to the fullest extent permitted by law, be waived as against the lenders (provided, however, that the foregoing waiver of defenses shall be of no force or remain directly effect if and to the extent that the existence of the waiver would constitute or indirectly liable result in there being a prohibited transaction under ERISA or Section 4975 of the Code), (2) that all Drawdown Purchases or Catch-Up Purchases made by the Subscriber in connection with a facility will be made to an account (in which such lenders may have a security interest under relevant security documentation) as directed by the Fund or the lenders (if authorized to make such direction under the relevant security documentation), and (3) that any lender or credit party under a Subscription Facility is extending credit to the Fund in reliance on such Subscriber’s funding its Capital Commitments as such lender’s primary source of repayment. For the avoidance of doubt, a Drawdown Purchase or Catch-Up Purchase made by the Subscriber upon the request of a lender shall reduce the Subscriber’s Capital Commitment and be treated in all respects in the same manner as a Drawdown Purchase or Catch-Up Purchase, as applicable, made upon the request of the Fund. Notwithstanding anything in this Subscription Agreement to the contrary, the Subscriber acknowledges and agrees: (i) that any limitation with respect to any Indebtednesscapital contribution shall not be applicable with respect to any Drawdown Notice the purpose of which is to repay amounts due under a Subscription Facility, except:
(a) regardless of whether the Obligations;
(b) Senior Notes in an aggregate principal amount not to exceed $4,350,000,000;
(c) Indebtedness of any Subsidiary of Borrower to Borrower related Drawdown Notice is issued by the Fund or any other such Subsidiary lender or of Borrower to any of its Subsidiariescredit party under the Subscription Facility; provided that (i) all such Indebtedness, if owed to a Credit Party, shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral Document, (ii) all if such Indebtedness owing by a Credit Party Subscriber is entitled to a Subsidiary that is not a Credit Party withdraw from the Fund pursuant to any provision of this Subscription Agreement, prior to the effectiveness of such withdrawal, such Subscriber shall be unsecured and subordinated in right obligated to fund its pro rata share of payment Drawdown Purchases necessary to the payment in full of the Obligations pursuant to cure any borrowing base default under the terms of any Subscription Facility as a subordination agreement with respect to direct or indirect result of such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness and (iii) in respect of any Indebtedness owing by a Subsidiary that is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d);
(d) Indebtedness incurred by Borrower or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) or from guaranties or letters of credit, surety bonds, performance bonds or similar obligations securing the performance of Borrower or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or any of its Subsidiaries;
(e) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal or similar obligations incurred in the ordinary course of business;
(f) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accounts;
(g) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees of and licensees to and of Borrower and its Subsidiaries;withdrawal.
Appears in 2 contracts
Sources: Subscription Agreement (KKR FS Income Trust Select), Subscription Agreement (KKR FS Income Trust Select)
Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except, without duplication:
(a) the Obligations;
(b) Senior Notes in an aggregate principal amount not to exceed $4,350,000,000;
(c) Indebtedness of any Guarantor Subsidiary of Borrower to Borrower Company or to any other such Subsidiary Guarantor Subsidiary, or of Borrower Company to any of its SubsidiariesGuarantor Subsidiary; provided that provided, (i) all such Indebtedness, if owed to a Credit Party, shall be evidenced by the Intercompany Note or another promissory note and Indebtedness shall be subject to a First Priority Lien pursuant to the applicable Collateral DocumentPledge and Security Agreement, (ii) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of a subordination agreement with respect to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness Obligations, and (iii) any payment by any such Guarantor Subsidiary under any guaranty of the Obligations shall result in respect a pro tanto reduction of the amount of any Indebtedness owing owed by a such Subsidiary that to Company or to any of its Subsidiaries for whose benefit such payment is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d)made;
(c) [RESERVED];
(d) Indebtedness incurred by Borrower Company or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) or from guaranties or letters of credit, surety bonds, performance bonds or similar obligations securing the performance of Borrower or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower Company or any of its Subsidiaries;
(e) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal or similar obligations incurred in the ordinary course of business;
(f) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accountsDeposit Accounts;
(g) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees of and licensees to and of Borrower Company and its Subsidiaries;
(h) guaranties by Company of Indebtedness of a Guarantor Subsidiary or guaranties by a Guarantor Subsidiary of Indebtedness of Company or another Guarantor Subsidiary with respect, in each case, to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.1; provided, that if the Indebtedness that is being guarantied is unsecured and/or subordinated to the Obligations, the guaranty shall also be unsecured and/or subordinated to the Obligations;
(i) reimbursement obligations in respect of letters of credit and surety bonds issued to support obligations of Company and its Subsidiaries in the ordinary course of business in an aggregate amount not to exceed at any time $7,500,000;
(j) Indebtedness with respect to Capital Leases (i) with respect to Company’s principal offices at Liberty Corner, New Jersey, if such offices are held under a Capital Lease, in an aggregate amount not to exceed at any time $10,000,000 and (ii) otherwise in an aggregate amount not to exceed at any time $3,000,000.
(k) purchase money Indebtedness, in an aggregate amount for all Indebtedness under this clause (k) not to exceed at any time $10,000,000; provided, any such Indebtedness shall be secured only by the asset acquired in connection with the incurrence of such Indebtedness;
(l) the Permitted Working Capital Facility;
(m) Indebtedness evidenced by the Interest Rate Agreements and other Indebtedness and obligations owing under Hedge Agreements relating to Loans hereunder and other Hedge Agreements entered into in order to manage existing or anticipated interest rate, exchange rate or commodity price risks and not for speculative purposes;
(n) [RESERVED];
(o) so long as no Event of Default shall be in existence or would occur as a result of the incurrence thereof, other Indebtedness of Company and/or its Subsidiaries, in an aggregate amount for all Indebtedness under this clause (o) not to exceed $50,000,000 at any time outstanding, that is unsecured and (ii) junior in right of payment to the payment of the Indebtedness arising or existing under this Agreement and the other Credit Documents, and the terms of which require no scheduled amortization or other scheduled payments of principal prior to at least one year after the Maturity Date, provided, that such Indebtedness is subordinated to the Obligations and the First Priority Lien of the Collateral Agent, pursuant to an intercreditor agreement with the lenders under such subordinated Indebtedness in form and substance reasonably acceptable to the Syndication Agent and the Collateral Agent;
(p) Indebtedness with respect to leases and financings of vehicles for use by employees in the ordinary course of business, with such initial amounts, as of the Closing Date, as described in Schedule 6.1(p), provided, that financings that are securitizations are specifically excluded;
(q) Indebtedness incurred in the ordinary course of business to customs and revenue authorities consisting of the obligation to pay customs duties in connection with the importation of goods;
(i) Indebtedness of a Person or Indebtedness attaching to assets of a Person that, in either case, becomes a Subsidiary or Indebtedness attaching to assets that are acquired by Company or any of its Subsidiaries, in each case after the Closing Date as the result of a Permitted Acquisition, in an aggregate amount not to exceed $10,000,000 at any one time outstanding, provided that (x) 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 anticipation thereof and (y) such Indebtedness is not guaranteed in any respect by Company or any Subsidiary (other than by any such person that so becomes a Subsidiary), and (ii) any refinancing, refunding, renewal or extension of any Indebtedness specified in subclause (i) above, provided, that (1) the principal amount of any such Indebtedness is not increased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or extension, (2) the direct and contingent obligors with respect to such Indebtedness are not changed and (3) such Indebtedness shall not be secured by any assets other than the assets securing the Indebtedness being renewed, extended or refinanced; and
(s) other Indebtedness of Company and its Subsidiaries in an aggregate amount not to exceed at any time $10,000,000; provided that no more than $5,000,000 of Indebtedness incurred pursuant to this Section 6.1(s) may be secured.
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (Reliant Pharmaceuticals, Inc.), Credit and Guaranty Agreement (Reliant Pharmaceuticals, Inc.)
Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except:
(a) the Obligations;
(b) Senior Notes in an aggregate principal amount not to exceed $4,350,000,000;
(c) Indebtedness of any Subsidiary of Borrower Holdings to Borrower or any other such Subsidiary or of Borrower to any of its SubsidiariesHoldings; provided that provided, (i) all such IndebtednessIndebtedness shall be evidenced by the Intercompany Note, and, if owed to a Credit Party, shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral DocumentSecurity Agreement, (ii) all such Indebtedness owing shall be unsecured and, if owed by a Credit Party to a Subsidiary that is not a Credit Party Party, shall be unsecured and subordinated in right of payment to the payment Payment in full Full of the Obligations pursuant to the terms of a subordination agreement with respect to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness and Intercompany Note, (iii) any payment by any such Guarantor Subsidiary under any guaranty of the Obligations shall result in respect a pro rata reduction of the amount of any Indebtedness owing owed by a such Subsidiary that to the Borrower or to any other Credit Parties for whose benefit such payment is not a Credit Party to a Credit Party, made and (iv) such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d);
(dc) Indebtedness incurred by Borrower or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) or from guaranties or letters of credit, surety bonds, performance bonds or similar obligations securing the performance of Borrower or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or any of its Subsidiaries[Reserved];
(ed) Indebtedness which may be deemed to exist pursuant to any workers’ compensation claims, self-insurance obligations, guaranties, performance, surety, statutory, appeal bonds or similar obligations incurred in the ordinary course of business;
(fe) Indebtedness in respect consisting of netting (i) any treasury or other cash management services, overdraft protections and otherwise in connection with including deposit accounts, automated clearing house (ACH) origination and other funds transfer, depository (including cash vault and check deposit), zero balance accounts and sweeps, return items processing, controlled disbursement accounts, positive pay, lockboxes and lockbox accounts, account reconciliation and information reporting, payables outsourcing, payroll processing, trade finance services, endorsements of instruments for deposit, investment accounts and securities accounts, and (ii) card services, including credit card (including purchasing card and commercial card), purchase cards (including so-called “procurement cards” or “P-Cards”), prepaid cards, including payroll, stored value and gift cards, merchant services processing, and debit card services, in each case incurred in the ordinary course of business;
(gf) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees of and licensees of Subsidiaries of Holdings;
(g) guaranties by the Borrower of Indebtedness of a Guarantor Subsidiary or guaranties by the Borrower or a Guarantor Subsidiary of Indebtedness of the Borrower or another Subsidiary with respect, in each case, to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.1; provided, that (i) no Non-Guarantor Subsidiary shall be permitted to guaranty any Indebtedness of a Credit Party that is unsecured and/or subordinated to the Obligations, (ii) if the Indebtedness that is being guarantied is unsecured and/or subordinated to the Obligations, the guaranty must also be unsecured and/or subordinated to the Obligations and (iii) such Indebtedness shall permitted as an Investment under Section 6.6(d);
(h) Indebtedness existing as of Borrower the Restatement Date described in Schedule 6.1, and Permitted Refinancing Indebtedness relating thereto;
(i) Indebtedness of Subsidiaries of Holdings with respect to Capital Lease Obligations and Purchase Money Obligations in an aggregate principal amount not to exceed at any time outstanding the greater of (x) $5,000,000 and (y) 15% of Consolidated EBITDA, on a Pro Forma Basis, for the most recently ended Test Period; provided that any such Indebtedness (i) 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 (ii) shall be secured only by the asset acquired, constructed, leased or improved in connection with the incurrence of such Indebtedness, and any Permitted Refinancing Indebtedness relating thereto;
(j) (i) Indebtedness of a Person or Indebtedness attaching to assets of a Person that, in either case, becomes a Subsidiary of Holdings or Indebtedness attaching to assets that are acquired by any Operating Credit Party or any of its Subsidiaries, in each case after the Closing Date as the result of any Investment permitted pursuant to Section 6.6 that results in a Person becoming a Subsidiary of Holdings (including any Permitted Acquisition) and (ii) any Permitted Refinancing Indebtedness relating to the Indebtedness specified in subclause (i) of this Section 6.1(j); provided that (A) any outstanding principal amount of Indebtedness permitted under this Section 6.1(j) shall not exceed an aggregate principal amount at any one time outstanding equal to the greater of (x) $15,000,000 and (y) 45% of Consolidated EBITDA, on a Pro Forma Basis, for the most recently ended Test Period, and (B) in the case of Indebtedness referred to in subclause (i) of this Section 6.1(j), (x) such Indebtedness existed at the time such Person became a Subsidiary of Holdings or at the time such assets were acquired and, in each case, was not created in anticipation thereof and (y) such Indebtedness is not guaranteed in any respect by Holdings or any Subsidiary of Holdings (other than by any such Person that so becomes a Subsidiary of Holdings in connection with such Investment);
(k) Indebtedness owing under Hedging Agreements entered into in order to manage existing or anticipated interest rate, exchange rate or commodity price risks and not for speculative purposes;
(l) Indebtedness representing deferred compensation to employees and directors or former employees or directors of Holdings and its SubsidiariesSubsidiaries in the ordinary course of business;
(m) Indebtedness for overdraft protections in the ordinary course of business; provided, however, that such Indebtedness is promptly extinguished;
(n) Indebtedness under letters of credit in an aggregate principal amount outstanding not to exceed the greater of (x) $7,500,000 and (y) 25% of Consolidated EBITDA, on a Pro Forma Basis, for the most recently ended Test Period;
(o) Indebtedness consisting of the financing of (i) insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(p) Indebtedness consisting of promissory notes issued by Holdings to any stockholder of Holdings or any current or former director, officer, employee, member of management, manager or consultant of Holdings, the Borrower or any Subsidiary of Holdings (or their respective immediate family members) to finance the purchase or redemption of Equity Interests permitted by Section 6.4(e);
(q) Indebtedness incurred by Holdings or any of its Subsidiaries arising from agreements providing for indemnification, adjustment or purchase price or similar obligations, or from guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Subsidiary of Holdings pursuant to such agreements, in connection with Permitted Acquisitions, other Investments permitted pursuant to Section 6.6 or permitted Dispositions of any business, assets or Subsidiary of Holdings;
(r) (A) Indebtedness (the Indebtedness incurred pursuant to this Section 6.1(r), the “Ratio Indebtedness”) of Holdings, the Borrower or any Subsidiary; provided that (1) at the time of the incurrence thereof and on a Pro Forma Basis after giving effect to the use of the proceeds thereof, no Event of Default shall have occurred or be continuing, and (2) the aggregate principal amount of Indebtedness outstanding in reliance on this clause (r) shall not exceed the sum of:
(i) additional unlimited amounts so long as after giving effect to the incurrence of such Ratio Indebtedness and the use of proceeds thereof, calculated on a Pro Forma Basis as of the Test Period most recently ended on or prior to such date of incurrence (measured as of the date such Indebtedness is incurred based upon the financial statements most recently delivered on or prior to such date pursuant to Section 5.1(a) or (b)) (but excluding from the computation thereof the proceeds of such Indebtedness), (A) in the case of unsecured Ratio Indebtedness, the Total Leverage Ratio would not exceed 5.75:1.00 calculated on a Pro Forma Basis after giving effect to all other transactions consummated in connection therewith, (B) in the case of Ratio Indebtedness that is Secured Debt secured by Liens that rank (or are intended to rank) junior to the Liens on the Collateral securing the Obligations or secured by Liens on assets not constituting Collateral, the Secured Leverage Ratio would not exceed 5.25:1.00 calculated on a Pro Forma Basis after giving effect to all other transactions consummated in connection therewith and (C) in the case of Ratio Indebtedness that is Senior Secured Debt, the Senior Secured Leverage Ratio would not exceed 4.75:1.00 calculated on a Pro Forma Basis after giving effect to all other transactions consummated in connection therewith; provided that:
(1) if such Indebtedness is Senior Secured Debt, such Indebtedness (x) does not mature prior to the Maturity Date of, or have a Weighted Average Life to Maturity shorter than the Weighted Average Life to Maturity of, any Loan outstanding at the time such Indebtedness is incurred or issued, (y) 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 Loans hereunder and (z) shall otherwise be subject to the provisions of Section 2.21(a)(ii)(A), (G) and (K) and Section 2.21(c) as if such Ratio Indebtedness was an Incremental Facility;
(2) if such Indebtedness is Secured Debt secured by Liens that rank (or are intended to rank) junior to the Liens on the Collateral securing the Obligations or secured by Liens on assets not constituting Collateral, such Indebtedness (x) does not mature prior to the date that is 180 days after the latest Maturity Date of any Loan outstanding at the time such Indebtedness is incurred or issued and (y) does not require any scheduled amortization, mandatory prepayments, redemptions, sinking fund payments or purchase offers prior to maturity (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 prepayments of the Loans hereunder pursuant to Section 2.10(e)) and change of control prepayment provisions and a customary acceleration right after an event of default), in each case prior to the date that is 180 days after the latest Maturity Date of any Loan outstanding at the time such Indebtedness is incurred);
(3) if such Indebtedness is unsecured, such Indebtedness does not mature prior to the date that is 180 days after the latest Maturity Date of any Loan outstanding at the time such Indebtedness is incurred or issued and does not require any scheduled amortization, mandatory prepayments, redemptions, sinking fund payments or purchase offers prior to maturity (other than pursuant to customary asset sale and change of control offers); and
(4) in the case of any Indebtedness described in clause (2) or (3) above, such Indebtedness shall have covenants and defaults that are (x) not materially more restrictive with respect to the obligors thereunder, as reasonably determined by the Borrower in good faith, than the covenants and defaults under the Credit Documents or (y) reflective of market terms and conditions for the type of Indebtedness issued or incurred at the time of issuance or incurrence thereof, as reasonably determined by the Borrower in good faith; and
Appears in 2 contracts
Sources: Amendment No. 7 to Amended and Restated Credit and Guaranty Agreement and Amendment No. 1 to Pledge and Security Agreement (Playboy, Inc.), Credit and Guaranty Agreement (PLBY Group, Inc.)
Indebtedness. No Credit Party shall, nor Borrower shall it permit any of its Subsidiaries to, directly or indirectly, not create, incur, assume assume, guarantee or guaranty, or otherwise become be or remain directly or indirectly liable with respect to any Indebtedness, except:
and shall not permit any Subsidiary to do so, other than Permitted Indebtedness, or prepay any Indebtedness or take any actions which impose on Borrower an obligation to prepay any Indebtedness, except (a) for the Obligations;
conversion of Indebtedness into equity securities and the payment of cash in lieu of fractional shares in connection with such conversion, (b) Senior Notes in an aggregate principal amount not for purchase money Indebtedness pursuant to exceed $4,350,000,000;
its then applicable payment schedule or with other purchase money Indebtedness permitted hereunder, (c) Indebtedness of any Subsidiary of Borrower to Borrower or any other such Subsidiary or of Borrower to any of its Subsidiaries; provided that for prepayment (i) all such Indebtedness, if by any Loan Party or Subsidiary of intercompany Indebtedness owed to a Credit PartyBorrower, shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral Document, (ii) all such Indebtedness owing by a Credit Party to a any Subsidiary that is not a Credit Loan Party shall be unsecured and subordinated in right of payment intercompany Indebtedness owed by such Subsidiary to the payment in full of the Obligations pursuant to the terms of a subordination agreement with respect to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness and (iii) in respect of any Indebtedness owing by a another Subsidiary that is not a Credit Party to a Credit Loan Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d);
or (d) Indebtedness incurred by Borrower or as may be permitted under any of its Subsidiaries arising from agreements providing for indemnificationSubordination Agreement, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) or from guaranties or letters of credit, surety bonds, performance bonds or similar obligations securing the performance of Borrower or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or any of its Subsidiaries;
(e) as otherwise permitted hereunder or approved in writing by Agent, (f) Permitted Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal or similar obligations incurred with the proceeds of other Permitted Indebtedness and (g) Indebtedness owed under corporate credit cards constituting “Permitted Indebtedness” and prepaid in the ordinary course of business;
. Notwithstanding anything to the contrary in the foregoing, the issuance of, performance of obligations under (fincluding any payments of interest), and conversion, exercise, repurchase, redemption (including, for the avoidance of doubt, a required repurchase in connection with the redemption of Permitted Convertible Debt upon satisfaction of a condition related to the stock price of Borrower’s common stock), settlement or early termination or cancellation of (whether in whole or in part and including by netting or set-off) (in each case, whether in cash, common stock of Borrower or, following a merger event or other change of the common stock of Borrower, other securities or property), or the satisfaction of any condition that would permit or require any of the foregoing, any Permitted Convertible Debt shall not constitute a prepayment of Indebtedness by Borrower for the purposes of this Section 7.4 provided that principal payments in cash (other than cash in lieu of fractional shares) shall only be allowed with respect to any repurchase in connection with the redemption of Permitted Convertible Debt upon satisfaction of a condition related to the stock price of Borrower’s common stock if the Redemption Conditions are satisfied in respect of netting services, overdraft protections such redemption and otherwise in connection with deposit accounts;
(g) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees of and licensees to and of Borrower and its Subsidiaries;at all times after such redemption.
Appears in 2 contracts
Sources: Loan and Security Agreement (Gritstone Bio, Inc.), Loan and Security Agreement (Gritstone Bio, Inc.)
Indebtedness. No Credit Loan Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectlywill incur, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect permit to any Indebtedness, exceptexist any:
(a) Indebtedness for borrowed money other than: (i) the Obligations;
; (bii) Senior Notes the Subordinated Debt and any Refinancing Debt thereof; (iii) such Indebtedness for borrowed money to the Persons described on Schedule 5.1 in an aggregate principal amount not existence as of the Signature Date and any Refinancing Debt thereof; (iv) Permitted Purchase Money Indebtedness and any Refinancing Debt thereof; (v) such Rate Management Obligations and credit card Obligations to exceed $4,350,000,000;
Lender or its Affiliates pursuant to such terms and conditions as agreed to by Lender and the applicable Loan Party; (cvi) Indebtedness of any Subsidiary of one Borrower to to, and held by, another Borrower or any other such Subsidiary or of Borrower to any of its Subsidiaries; provided that (i) all such Indebtedness, if owed to a Credit Party, shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral Document, (ii) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations if that Indebtedness is permitted pursuant to the terms of Section 5.9; and (vii) other Indebtedness not otherwise authorized by this Section 5.1 that has been specifically approved in writing by Lender and any Refinancing Debt thereof;
(b) Indebtedness under a subordination agreement Rate Management Agreement except (i) for Rate Management Agreements entered into with Lender or an Affiliate of Lender or (ii) as approved in writing by Lender;
(c) Indebtedness representing reimbursement obligations and other liabilities of a Loan Party with respect to such Indebtedness substantially Surety Bonds (except those Surety Bonds obtained by a Borrower in the form ordinary course of Exhibit J-2 among the its business as presently conducted by it), letters of credit, banker’s acceptances, drafts or similar documents or instruments issued for a Loan Party’s account except for Letters of Credit Parties and such Subsidiaries party to such Indebtedness and (iii) in respect of any Indebtedness owing issued by a Subsidiary that is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d)Lender;
(d) Indebtedness incurred secured by Borrower a Lien on or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting payable out of the deferred purchase price proceeds or production from any property of property acquired in a Permitted Acquisition) or from guaranties or letters Loan Party regardless of credit, surety bonds, performance bonds or similar obligations securing the performance of Borrower or any whether such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or any of its Subsidiariesliability has been assumed by a Loan Party;
(e) Indebtedness which may be deemed representing the balance deferred and unpaid of the purchase price of any property or services except (i) Permitted Purchase Money Indebtedness and (ii) any such balance that constitutes an account payable to exist pursuant to any guarantiesa trade creditor created, performanceincurred, surety, statutory, appeal assumed or similar obligations incurred in the ordinary course of business;
(f) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accounts;
(g) guaranties guaranteed by a Loan Party in the ordinary course of business of a Borrower in connection with obtaining goods, materials or services that is not more than ninety (90) days in arrears as measured from the date of billing, unless the trade payable is being contested in good faith; or
(f) Indebtedness evidenced by notes, bonds, debentures, installment contracts, capitalized leases, synthetic leases, or similar obligations of suppliers, customers, franchisees of and licensees except to and of Borrower and its Subsidiaries;the extent permitted under Section 5.1(a).
Appears in 2 contracts
Sources: Credit Agreement (Ceco Environmental Corp), Credit Agreement (Ceco Environmental Corp)
Indebtedness. No Credit Party shallEach of Holdings and the Company shall not, nor and shall it not permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except:
(a) the Obligations;
(b) Senior Notes in an aggregate principal amount not the Company may become and remain liable with respect to exceed $4,350,000,000;
(c) Indebtedness of any Subsidiary of Borrower to Borrower or any other such Subsidiary or of Borrower to any of its Subsidiarieswholly-owned Subsidiary Guarantors, and any wholly-owned Subsidiary Guarantor of the Company may become and remain liable with respect to Indebtedness to the Company or any other wholly-owned Subsidiary Guarantor of the Company; provided that provided, (i) all such Indebtedness, if owed to a Credit Party, Indebtedness under this subclause (b) shall be (x) evidenced by the Intercompany Note or another promissory note notes and all such notes shall be subject to a First Priority Lien pursuant to the applicable Collateral Document, Security Agreement and (iiy) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of a the applicable promissory notes or an intercompany subordination agreement with respect that in any such case, is reasonably satisfactory to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness Administrative Agent, and (iiiii) any payment by any such Subsidiary under any guaranty of the Obligations shall result in respect a pro tanto reduction of the amount of any Indebtedness owing owed by a such Subsidiary that to the Company or to any of its Subsidiaries for whose benefit such payment is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d)made;
(c) [reserved;]
(d) Indebtedness incurred by Borrower or any of the Company and its Subsidiaries arising from agreements providing for indemnificationin respect of netting services or overdraft protections with deposit accounts; provided, adjustment of purchase price or similar obligations (including that such Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) or from guaranties or letters of credit, surety bonds, performance bonds or similar obligations securing the performance of Borrower or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or any is extinguished within three Business Days of its Subsidiariesincurrence;
(e) guaranties by the Company or Holdings of Indebtedness which may of a Subsidiary Guarantor or guaranties by a Subsidiary of the Company of Indebtedness of the Company or a Subsidiary Guarantor with respect, in each case, to Indebtedness otherwise permitted to be deemed to exist incurred pursuant to this Section 7.01;
(f) Indebtedness of the Company and its Subsidiaries existing on the Closing Date and described in Schedule 7.01, but not any guarantiesextensions, performancerenewals, suretyrefinancings or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the Closing Date and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not materially less favorable (taken as a whole) to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, statutoryand the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended and, appeal prior to the issuance thereof, the Administrative Agent shall have received a certificate of a Responsible Officer of the Company describing the terms of such refinancing or similar obligations extension and certifying the requirements of this clause (f)(ii) have been satisfied; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced or (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced;
(g) purchase money Indebtedness of the Company and its Subsidiaries and Capital Leases (other than in connection with sale-leaseback transactions) of the Company and its Subsidiaries, in each case incurred in the ordinary course of businessbusiness to provide all or a portion of the purchase price or cost of construction of an asset or an improvement of an asset not constituting part of the Collateral; provided, that (A) such Indebtedness when incurred shall not exceed the purchase price or cost of improvement or construction of such asset, (B) no such Indebtedness shall be refinanced for a principal amount in excess of the principal balance outstanding thereon at the time of such refinancing, (C) such Indebtedness shall be secured only by the asset acquired, constructed or improved in connection with the incurrence of such Indebtedness and (D) the aggregate principal amount of all such Indebtedness shall not exceed $10,000,000 at any time outstanding;
(fh) other Indebtedness of the Company and its Subsidiaries, which is unsecured, in respect of netting services, overdraft protections and otherwise in connection with deposit accountsan aggregate principal amount not to exceed $50,000,000 at any time outstanding;
(gi) guaranties Indebtedness of the Company under any Hedging Agreement entered into in the ordinary course of business and not for speculative purposes;
(j) [Reserved];
(k) Additional secured or unsecured senior or subordinated Indebtedness of the Company or Holdings, the terms and conditions of which (i) shall provide for a maturity date no earlier than 180 days after the Latest Maturity Date hereunder and with no scheduled amortization or other scheduled payments of principal prior to such date, (ii) shall be no more restrictive (without taking into account fees or interest rates), taken as a whole, than those set forth in the Loan Documents as in effect at the time such Indebtedness is incurred, except that this clause (ii) shall not prohibit Holdings and its Subsidiaries from issuing high-yield senior unsecured notes or high-yield subordinated unsecured notes pursuant to indentures containing customary covenants for the issuance of high yield debt securities in a public offering at such time and (iii) shall otherwise be reasonably satisfactory to Administrative Agent; provided, that (A) after giving pro forma effect to the incurrence of such Indebtedness (and, if applicable, giving pro forma effect to any Subject Transaction), (1) the Leverage Ratio is less than 3.50 to 1.00 and (2) the Consolidated Interest Coverage Ratio is greater than or equal to 3.0 to 1.0 and (B) no Default or Event of Default has occurred or is continuing at the time of incurrence or would result from the incurrence of such Indebtedness and (C) prior to the incurrence thereof, the Administrative Agent shall have received a certificate of a Responsible Officer of the Company or Holdings, as applicable, describing the terms of such Indebtedness and certifying the requirements of this clause (k) have been satisfied; provided, further, that Indebtedness permitted pursuant to this clause (k) shall only be permitted if proceeds of such Indebtedness are used in connection with a Permitted Acquisition or incurred to refinance other Indebtedness incurred in connection with a Permitted Acquisition;
(l) Indebtedness of a Person existing at the time such Person becomes a Subsidiary of the Company following the Closing Date, which Indebtedness is in existence at the time such Person becomes a Subsidiary and is not created in connection with or in contemplation of such Person becoming a Subsidiary; provided that the aggregate principal amount of all such Indebtedness in the aggregate shall not exceed $10,000,000 at any time outstanding;
(m) to the extent constituting Indebtedness, deferred compensation arrangements under which the aggregate outstanding obligations of suppliersthe Company do not exceed the value of assets in any related trusts and the value of insurance policies intended to offset such obligations by more than $2,500,000 at any time;
(n) Capital Leases of the Company entered into in connection with sale-leaseback transactions permitted by Section 7.03; provided, customersthat (A) no such Indebtedness shall be refinanced for a principal amount in excess of the principal balance outstanding thereon at the time of such refinancing and (B) such Indebtedness shall be secured only by the facility which is the subject of such Capital Lease; and
(o) Indebtedness of the Company or any other Loan Party in connection with Floor Planning Facilities, franchisees of and licensees in an aggregate amount not to and of Borrower and its Subsidiaries;exceed $35,000,000.
Appears in 2 contracts
Sources: Credit Agreement (Douglas Dynamics, Inc), Credit Agreement (Douglas Dynamics, Inc)
Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except:
(a) the Obligations;
(b) Senior Notes Indebtedness in an aggregate principal amount not to exceed $4,350,000,000;
respect of Investments permitted under Sections 6.6(b), (cd) Indebtedness of any Subsidiary of Borrower to Borrower or any other such Subsidiary or of Borrower to any of its Subsidiariesand (e); provided that provided, (i) all such IndebtednessIndebtedness shall be evidenced by an Intercompany Note, and, if owed to a Credit Party, shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral DocumentDocuments, (ii) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of a subordination agreement with respect to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness an Intercompany Note and (iii) any payment by any such Guarantor Subsidiary under any guaranty of the Obligations shall result in respect a pro tanto reduction of the amount of any Indebtedness owing owed by a such Subsidiary that to Borrower or to any of its Subsidiaries for whose benefit such payment is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d)made;
(c) [reserved]
(d) Indebtedness incurred by Borrower Holdings or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) obligations, or from guaranties or letters of credit, surety bonds, bonds or performance bonds or similar obligations securing the performance of Borrower Holdings or any such Subsidiary pursuant to such agreements, agreements in connection with the Acquisition, Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower Holdings or any of its Subsidiaries;
(e) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal or similar obligations incurred in the ordinary course of business;
(f) Indebtedness in respect (including intraday cash management lines relating thereto) of Holdings and its Subsidiaries pursuant to over-draft or similar lines of credit (including treasury management arrangements, depository or other cash management services and commercial credit card and merchant card services), netting services, overdraft protections services and otherwise other services customarily provided in connection with deposit accountsdepository account services;
(g) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees of and licensees to and of Borrower Holdings and its Subsidiaries;
(i) guaranties by US Holdings or Australia Holdings of Indebtedness of a Guarantor Subsidiary, (ii) guaranties by a Guarantor Subsidiary or Borrower of Indebtedness of Borrower or another Guarantor Subsidiary or (iii) guaranties by a Person that is not a Credit Party of Indebtedness of another Person that is not a Credit Party, in each case, with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.1; provided, that if the Indebtedness that is being guarantied is unsecured and/or subordinated to the Obligations, the guaranty shall also be unsecured and/or subordinated to the Obligations;
(i) Indebtedness described in Schedule 6.1(i) and any extensions, renewals, refinancings or replacements of such Indebtedness and any further extensions, renewals, refinancings or replacements of such extended, renewed, refinanced or replaced Indebtedness; provided that in respect of any extensions, renewals, refinancings or replacements of any such Indebtedness (or any further extensions, renewals, refinancings or replacements of such extended, renewed, refinanced or replaced Indebtedness), (i) the terms and conditions thereof shall not be materially less favorable to the obligor(s) thereon or to Lenders than the Indebtedness being extended, renewed, refinanced or replaced, (ii) the average life to maturity thereof is greater than or equal to that of the Indebtedness being extended, renewed, refinanced or replaced, (iii) if the direct or contingent obligors thereon are not the same as the direct or contingent obligors on the Indebtedness being extended, renewed, refinanced or replaced, then the direct or contingent obligors thereon shall be non-Credit Parties if the direct or contingent obligors on the Indebtedness being extended, renewed, refinanced or replaced are non-Credit Parties and (iv) the principal amount thereof shall not exceed the then outstanding amount of the Indebtedness being extended, renewed, refinanced or replaced (plus capitalized interest thereon, OID and related fees);
(j) Indebtedness of Subsidiaries of Holdings with respect to Capital Leases (including but not limited to leasing of rail cars constituting Capital Leases and letter of credit reimbursement obligations in connection therewith) in an aggregate amount not to exceed (i) at any time outstanding prior to the Acquisition Date, $50,000,000 and (ii) at any time outstanding thereafter, $85,000,000;
(k) purchase money Indebtedness of Subsidiaries of Holdings in an aggregate amount not to exceed (i) $35,000,000 outstanding at any time prior to the Acquisition Date and (ii) $60,000,000 outstanding at any time thereafter; provided, any such Indebtedness (i) shall be secured only by the asset acquired in connection with the incurrence of such Indebtedness, and (ii) shall constitute not less than 50% of the aggregate consideration paid with respect to such asset;
(l) [reserved]
(i) Indebtedness of one or more Credit Parties in respect of the Revolving Credit Agreement and any extensions, renewals, refinancings or replacements of any such Indebtedness, including any replacements thereof following repayment in full thereof (which, for the avoidance of doubt, includes the repayment in full of all obligations (other than contingent indemnification obligations) under such agreement including reimbursement obligations under letters of credit issued thereunder and the termination of all commitments to lend thereunder) to the extent permitted by the Closing Date Intercreditor Agreement or a replacement intercreditor agreement with the Administrative Agent the terms of which are substantially similar to the Closing Date Intercreditor Agreement or are not less favorable in any material respect to the Administrative Agent and the Lenders than the terms of the Closing Date Intercreditor Agreement (provided that a certificate of an Authorized Officer delivered to the Administrative Agent at least five Business Days prior to the entering into of such intercreditor agreement stating that Tronox US has determined in good faith that such terms and conditions satisfy the foregoing requirements shall be conclusive evidence that such terms and conditions satisfy such requirements unless the Administrative Agent notifies Borrower within such five Business Day period that it disagrees with such determination and includes a reasonable description of the basis upon which it disagrees); provided, that any such extensions, renewals, refinancings or replacements (x) shall not have direct or contingent obligors that are not also Credit Parties, (y) shall not be secured by assets that do not constitute Collateral, and (z) shall at all times be subject to the Closing Date Intercreditor Agreement (or such replacement intercreditor agreement described above in this clause (m)); (ii) a Permitted Securitization incurred by a Securitization Subsidiary, and (iii) Indebtedness incurred by one or more Subsidiaries of Holdings in respect of one or more Alternative Facilities (which for the avoidance of doubt includes all obligations under such agreements including reimbursement obligations under letters of credit issued thereunder) with one or more Persons that are not Affiliates of Holdings or any of Holdings’ Subsidiaries; provided that:
(A) prior to the Acquisition Date, the aggregate principal amount of all Indebtedness outstanding at any time pursuant to (x) Section 6.1(m)(i) may not exceed $200,000,000 and (y) Section 6.1(m)(ii) and Section 6.1(m)(iii) in the aggregate may not exceed the difference between $200,000,000 and any outstanding Indebtedness pursuant to Section 6.1(m)(i);
(B) from and after the Acquisition Date, the aggregate principal amount of all Indebtedness outstanding at any time pursuant to (x) Section 6.1(m)(i) may not exceed $400,000,000 and (y) Section 6.1(m)(ii) and Section 6.1(m)(iii) in the aggregate may not exceed the difference between $400,000,000 and any outstanding Indebtedness pursuant to Section 6.1(m)(i);
(C) any Indebtedness pursuant to this Section 6.1(m) shall not be incurred (for the avoidance of doubt, utilizations of the commitments under the Revolving Credit Agreement shall not to be deemed to be an incurrence of Indebtedness solely for purposes of this Section 6.1(m)(C)), created or assumed if any Event of Default has occurred and is continuing or would result therefrom;
(D) in respect of any secured Alternative Facility (other than any Permitted Securitization and other than any Alternative Facility that has loans or commitments in an original aggregate principal amount of less than of $50,000,000), the relevant Credit Party, the Collateral Agent and the Alternative Facility Agent shall, at the option of the Administrative Agent, enter into either an amendment, supplement or amendment and restatement of the Closing Date Intercreditor Agreement with the ABL Agent and Administrative Agent to join such Alternative Facility to the Closing Date Intercreditor Agreement or enter into one or more intercreditor agreements with the Administrative Agent the terms of which are substantially similar to the Closing Date Intercreditor Agreement or are not less favorable in any material respect to the Administrative Agent and the Lenders than the terms of the Closing Date Intercreditor Agreement (provided that a certificate of an Authorized Officer delivered to the Administrative Agent at least five Business Days prior to the entering into of such intercreditor agreement stating that Tronox US has determined in good faith that such terms and conditions satisfy the foregoing requirements shall be conclusive evidence that such terms and conditions satisfy such requirements unless the Administrative Agent notifies Borrower within such five Business Day period that it disagrees with such determination and includes a reasonable description of the basis upon which it disagrees) (each such intercreditor agreement, an “Alternative Facility Intercreditor Agreement”), and such amended, supplemented or amended and restated Closing Date Intercreditor Agreement or such Alternative Facility Intercreditor Agreement shall be in full force and effect so long as any such Indebtedness in respect of any Alternative Facility (other than a Permitted Securitization) remains outstanding (provided that, solely with respect to secured Alternative Facilities established or incurred by South African Subsidiaries, no Alternative Facility Intercreditor Agreement shall be required if the Collateral Documents do not purport to grant a security interest in the assets secured by such Alternative Facility Credit Documents);
(E) in respect of any Permitted Securitization, (1) the Securitization Subsidiary, the Collateral Agent and the Alternative Facility Agent shall, if required by the Alternative Facility Agent for the Permitted Securitization to grant in favor of the Collateral Agent a First Priority Lien in the Seller’s Retained Interest, enter into either an amendment, supplement or amendment and restatement of the Closing Date Intercreditor Agreement with the ABL Agent and Administrative Agent to effectuate such security interest or enter into one or more intercreditor agreements with the Administrative Agent to effectuate such security interest (each such intercreditor agreement, a “Permitted Securitization Intercreditor Agreement”), and such amended, supplemented or amended and restated Closing Date Intercreditor Agreement or such Permitted Securitization Intercreditor Agreement shall be in full force and effect so long as any such Permitted Securitization remains outstanding (provided that, if Seller’s Retained Interest in the relevant Securitization Subsidiary is not required to be Collateral pursuant to the terms of the definition of “Permitted Securitization”, then this clause (D) shall not be applicable to such Seller’s Retained Interest);
(F) if the original aggregate principal amount of loans and commitments in respect of such Alternative Facility exceeds $200,000,000, the terms and provisions of any Alternative Facility shall be reasonably acceptable to Administrative Agent; and
(G) there shall be no Alternative Facilities in respect of South African Subsidiaries prior to the Acquisition Date, and after the Acquisition Date the aggregate principal amount of any Alternative Facilities established, incurred or guaranteed by South African Subsidiaries shall not exceed $160,000,000.
(n) the financing of insurance premiums in customary amounts in the ordinary course of business;
(o) Indebtedness with respect to Standard Securitization Undertakings;
(p) [reserved];
(i) letters of credit issued for the account of Holdings or any of its Subsidiaries that are outstanding on the Closing Date (and renewals, extensions and replacements thereof) and set forth on Schedule 6.1(q) and (ii) other letters of credit issued for the account of Holdings or any of its Subsidiaries in an aggregate principal face amount not to exceed (A) prior to the Acquisition Date, $20,000,000 outstanding at any time and (B) thereafter $35,000,000 outstanding at any time;
(r) other Indebtedness (excluding Permitted Unsecured Notes) of Holdings and its Subsidiaries in an aggregate principal amount not to exceed (A) prior to the Acquisition Date, $75,000,000 outstanding at any time and (B) thereafter $125,000,000 outstanding at any time;
(s) [reserved]
(t) Indebtedness under Eligible Commodity Hedging Agreements, Interest Rate Agreements and Currency Agreements; provided, that such Eligible Commodity Hedging Agreements shall be unsecured; provided further that such Interest Rate Agreements and Currency Agreements shall be unsecured unless they constitute Hedge Agreements;
(u) Permitted Seller Notes in an aggregate principal amount not to exceed (A) prior to the Acquisition Date, $75,000,000 outstanding at any time and (B) thereafter $125,000,000 outstanding at any time;
(v) Indebtedness of a Person at the time such Person becomes a Subsidiary of Holdings, or is merged or consolidated with or into Holdings or any of its Subsidiaries in a transaction otherwise permitted under this Agreement (other than in connection with the Acquisition), in an aggregate principal amount not to exceed (A) prior to the Acquisition Date, $35,000,000 outstanding at any time and (B) thereafter, $100,000,000 outstanding at any time, in each case outstanding for all Indebtedness incurred pursuant to this clause (v), and extensions, renewals, refinancing, refunding and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than any such increase not exceeding the amount of any fees, OID, if any, premium, if any, and financing costs relating to such refinancing); provided that (i) such Indebtedness (other than any such extension, renewal, refinancing, refunding or replacement) exists at the time such Person becomes a Subsidiary and is not created in contemplation of such event, (ii) other than guaranties permitted by Section 6.1(h), neither Holdings, Borrower or any Subsidiaries (other than the Person that is the obligor on such Indebtedness at the time it becomes a Subsidiary) shall be liable for such Indebtedness and (iii) Holdings is in compliance, on a pro forma basis after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, with the covenant contained in Section 6.7 (as determined in accordance with Section 6.7(b));
(w) Permitted Unsecured Notes, so long as both before and after giving pro forma effect to the incurrence of such Permitted Unsecured Notes, (i) no Event of Default shall have occurred and be continuing or result therefrom and (ii) the Leverage Ratio for the most recently ended Fiscal Quarter or Fiscal Year for which financial statements are then available does not exceed 2.50:1.00; and
(x) Indebtedness of Persons comprising the Acquired Business in existence at the time the Acquisition is consummated; provided that (i) such Indebtedness is paid in full, any commitments to lend thereunder are terminated, and any Liens permitted pursuant to Section 6.2(z) hereof are released in full no
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (Tronox LTD), Credit and Guaranty Agreement (Tronox LTD)
Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectlyIncur, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect permit to exist any Indebtedness, except:
(a) Indebtedness (other than intercompany Indebtedness) of the ObligationsSubsidiaries existing, or incurred pursuant to facilities existing, on the Closing Date and set forth on Schedule 6.01 and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness or, without duplication, replacements of such facilities that would constitute Permitted Refinancing Indebtedness with respect to such facilities if all Indebtedness available to be incurred thereunder were outstanding on the date of such replacement;
(b) Senior Notes in an aggregate principal amount not to exceed $4,350,000,000Indebtedness created hereunder and under the other Loan Documents;;
(c) Indebtedness of the Borrower and the Subsidiaries pursuant to Swap Agreements permitted by Section 6.12;
(d) Indebtedness of the Borrower and the Subsidiaries owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case, provided in the ordinary course of business; provided, that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations are reimbursed not later than 30 days following such incurrence;
(e) Indebtedness of the Borrower to any Subsidiary and of Borrower any Subsidiary to the Borrower or any other such Subsidiary or of Borrower to any of its SubsidiariesSubsidiary; provided provided, that (i) all such Indebtedness, if owed to a Credit Party, shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral Document, (ii) all such Indebtedness owing by a Credit Party to a of any Subsidiary that is not a Credit Subsidiary Loan Party owing to the Borrower or any Subsidiary Loan Party shall be unsecured subject to Section 6.04, and (ii) Indebtedness of the Borrower owing to any Subsidiary and Indebtedness of any other Loan Party owing to any Subsidiary that is not a Subsidiary Loan Party shall be subordinated in right of payment to the payment in full Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness of the Obligations Borrower and the Subsidiaries in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case, reasonably required in the conduct of the business (giving effect to any growth or expansion of such business permitted hereunder), including those incurred to secure health, safety, insurance and environmental obligations of the Borrower and its Subsidiaries as conducted in accordance with good and prudent business industry practice and otherwise as permitted by the Loan Documents;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services in the ordinary course of business and in good faith; provided, that (i) such Indebtedness (other than credit or purchase cards) is extinguished within 10 Business Days of notification to the Borrower of its incurrence; and (ii) such Indebtedness in respect of credit or purchase cards is extinguished within 60 days from its incurrence;
(i) Indebtedness of a Subsidiary acquired after the Closing Date or a person merged into or consolidated with the Borrower or any Subsidiary after the Closing Date and Indebtedness assumed in connection with the acquisition of assets, which Indebtedness, in each case, exists at the time of such acquisition, merger or consolidation and is not created in contemplation of such event and where such acquisition, merger or consolidation is permitted by this Agreement, and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that the aggregate principal amount of such Indebtedness at the time of, and after giving effect to, such acquisition, merger or consolidation, such assumption or such incurrence, as applicable (together with Indebtedness outstanding pursuant to this paragraph (h) or paragraph (i) of this Section 6.01 and the terms Remaining Present Value of a subordination agreement with respect to such Indebtedness substantially outstanding leases permitted under Section 6.03), would not exceed $45,000,000 in the form aggregate;
(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 Exhibit J-2 among the Credit Parties and respective asset permitted under this Agreement in order to finance such Subsidiaries party to such acquisition or improvement, (ii) any Permitted Refinancing Indebtedness in respect thereof, and (iii) 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, collectively, in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof (together with Indebtedness owing outstanding pursuant to paragraph (h) of this Section 6.01 or this paragraph (i) and the Remaining Present Value of leases permitted under Section 6.03) would not exceed $45,000,000 in the aggregate;
(j) Indebtedness in respect of the 2017 Exchange Notes and Permitted Refinancing Indebtedness with respect thereto;
(k) other Indebtedness of the Borrower or any Subsidiary, in an aggregate principal amount at any time outstanding pursuant to this paragraph (k) not in excess of $30,000,000;
(l) Guarantees by a the Borrower or any Subsidiary of any Indebtedness of the Borrower or any Subsidiary expressly permitted to be incurred under this Agreement; provided, that, notwithstanding anything to the contrary in this Section 6.01, (i) the Borrower and the Loan Parties shall not Guarantee the Indebtedness of any Subsidiary that is not a Credit Loan Party unless such Guarantee is expressly permitted under Section 6.04, (ii) any Guarantees by the Borrower or any Loan Party under this Section 6.01(l) of any other Indebtedness of a person that is subordinated in right of payment to other Indebtedness of such person shall be expressly subordinated in right of payment to the Obligations on terms not less favorable to the Lenders than the subordination terms of such other Indebtedness, (iii) no Subsidiary shall Guarantee any Junior Indebtedness (or Permitted Refinancing Indebtedness in respect of any of the foregoing), unless such Subsidiary is also a Credit Party, such Indebtedness is permitted as an Loan Party in compliance with the Collateral and Guarantee Requirement and (iv) no Subsidiary (other than Affinion Investments II) shall Guarantee the Affinion Investment under the proviso to Section 6.6(d)Notes Documents;
(dm) Indebtedness incurred by arising from agreements of the Borrower or any of its Subsidiaries arising from agreements Subsidiary providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired obligations, in a Permitted Acquisition) each case, incurred or from guaranties or letters of credit, surety bonds, performance bonds or similar obligations securing the performance of Borrower or any such Subsidiary pursuant to such agreements, assumed in connection with Permitted Acquisitions or permitted dispositions the disposition of any business, assets or Subsidiary a Subsidiary, other than Guarantees of Borrower Indebtedness incurred by any person acquiring all or any portion of its Subsidiariessuch business, assets or a Subsidiary for the purpose of financing such acquisition, in each case, to the extent such obligation or transaction is permitted by this Agreement;
(en) Indebtedness which may be deemed to exist reimbursement and similar obligations of Subsidiaries in respect of letters of credit or bank guarantees (other than Letters of Credit issued pursuant to any guaranties, performance, surety, statutory, appeal or similar obligations incurred Section 2.05) having an aggregate face amount not in the ordinary course excess of business$12,000,000;
(fo) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accounts;
(g) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees of and licensees to and of Borrower and its Subsidiariesthe Subsidiaries supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
Appears in 2 contracts
Sources: Credit Agreement (Affinion Group Holdings, Inc.), Credit Agreement (Affinion Group Holdings, Inc.)
Indebtedness. No (a) The Borrower (i) shall not, and shall not permit any other Specified Loan Party to, and by its execution hereof the Parent Guarantor agrees that it shall not, assume, create, incur or suffer to exist any Indebtedness to the Parent Guarantor or any of its Subsidiaries unless such Indebtedness is fully subordinated to the Obligations on terms satisfactory to the Administrative Agent and (ii) shall not permit any Subsidiary Guarantor or Operating Lessee to create, assume, incur or suffer to exist any Indebtedness other than (A) as permitted in clause (i), (B) the Obligations and any Guarantees thereof, (C) trade payables and equipment leases that are normal and customary both as to their terms and as to their amounts, (D) Guaranties of Franchise Agreements or Management Agreements entered into in the ordinary course of business and (E) the “Obligations” (under and as defined in the Revolving Credit Agreement) and any Guarantees thereof.
(b) Except as permitted pursuant to Section 10.1(e) hereof, the Borrower shall not, and shall not permit any other Specified Loan Party shallor any of its or their respective Subsidiaries to, nor and by its execution hereof the Parent Guarantor agrees that it shall it not and shall not permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or guarantyprepay any principal of, or accrued interest on, any Subordinated Debt or otherwise become make any voluntary or remain directly or indirectly liable optional payment with respect to any Indebtednessprincipal of, except:
(a) or accrued interest on, any Subordinated Debt prior to the Obligations;
(b) Senior Notes in an aggregate principal amount originally scheduled maturity date thereof or otherwise redeem or acquire for value any Subordinated Debt. Further, the Borrower shall not, and shall not to exceed $4,350,000,000;
(c) Indebtedness of any Subsidiary of Borrower to Borrower or permit any other such Subsidiary or of Borrower to any of its Subsidiaries; provided that (i) all such Indebtedness, if owed to a Credit Party, shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral Document, (ii) all such Indebtedness owing by a Credit Specified Loan Party to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of a subordination agreement with respect to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness and (iii) in respect of any Indebtedness owing by a Subsidiary that is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d);
(d) Indebtedness incurred by Borrower or any of its or their respective Subsidiaries arising from agreements providing for indemnificationto, adjustment of purchase price or similar obligations (including Indebtedness consisting of and by its execution hereof the deferred purchase price of property acquired in a Permitted Acquisition) or from guaranties or letters of credit, surety bonds, performance bonds or similar obligations securing the performance of Borrower or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or Parent Guarantor agrees that it shall not and shall not permit any of its SubsidiariesSubsidiaries to, amend or modify, or permit the amendment or modification of, any agreement or instrument evidencing any Subordinated Debt where such amendment or modification provides for the following or which has any of the following effects:
(i) increases the rate of interest accruing on such Subordinated Debt;
(eii) Indebtedness increases the amount of any scheduled installment of principal or interest, or shortens the date on which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal such installment or similar obligations incurred in the ordinary course of businessprincipal or interest becomes due;
(fiii) Indebtedness in respect shortens the final maturity date of netting services, overdraft protections and otherwise in connection with deposit accountssuch Subordinated Debt;
(giv) guaranties increases the principal amount of such Subordinated Debt;
(v) amends any financial or other covenant contained in any document or instrument evidencing any Subordinated Debt in a manner which is more onerous to the ordinary course Borrower, such Loan Party or such Subsidiary or which requires the Borrower, such Loan Party or such Subsidiary to improve its financial performance;
(vi) provides for the payment of business additional fees or the increase in existing fees; and/or
(vii) otherwise could reasonably be expected to be adverse to the interests of the obligations of suppliers, customers, franchisees of and licensees to and of Borrower and its Subsidiaries;Administrative Agent or the Lenders.
Appears in 2 contracts
Sources: Term Loan Agreement (Chesapeake Lodging Trust), Term Loan Agreement (Chesapeake Lodging Trust)
Indebtedness. No Credit Party shall, nor shall it permit The Subscriber acknowledges that the Fund may incur indebtedness at any of its Subsidiaries totime and from time to time, directly or indirectlyindirectly through one or more subsidiaries (or series of subsidiaries) to borrow against the Subscriber’s Capital Commitments, createto finance investments, incurfor working capital, assume for expenses, for general corporate purposes (including to pay dividends or guarantydistributions) and to warehouse loans, including without limitation, one or more credit facilities to finance its investments and for other permissible activities. Those facilities may be secured by an assignment by way of security, pledge, charge, mortgage or other security interest, as the case may be, of or in (A) the Undrawn Capital Commitments, the proceeds of Drawdown Purchases and/or Catch-Up Purchases and the right to receive capital contributions from the Subscriber and Other Investors, (B) the Fund’s right to make drawdowns on those Capital Commitments, deliver Drawdown Notices and receive the proceeds of Drawdown Purchases and/or Catch-Up Purchases (including any powers of attorney or other delegation of the right to deliver Drawdown Notices), and/or (C) any deposit or other account into which the proceeds of Drawdown Purchases or Catch-Up Purchases will be deposited, and all claims, rights and interests that the Fund may have relating to or arising from clause (A), clause (B) or this clause (C) (including the right to exercise any remedies of the Fund under or related to this Subscription Agreement in respect of any such Drawdown Notice or Drawdown Purchase or Catch-Up Purchase), which may be granted to a lender or an agent for such a lender pursuant to any loan or security documentation entered into between the Fund and any lender (any such facility described in this sentence, a “Subscription Facility”). The Subscriber may, upon request by the Fund or the lender (if authorized to make such request under the relevant security documentation), be required to acknowledge the existence of a subscription credit facility, confirm the terms of the Subscriber’s Capital Commitment and the amount of its Unfunded Capital Commitment to the lender, to honor capital calls made by the lender or other credit party, to provide financial information reasonably requested by the lender and to execute other documents as may be reasonably requested in connection with obtaining such a facility. In connection with any such facility, the Subscriber agrees and acknowledges the following, for the benefit of the lenders: (1) it is and shall remain absolutely and unconditionally obligated to make Drawdown Purchases and/or Catch-Up Purchases pursuant to Section 3 (including, without limitation, those required as a result of the failure of any Other Investor to advance funds with respect to a Drawdown Notice made pursuant to a Capital Commitment with the Other Investor), pro rata among all non-Defaulting Shareholders (as defined below) based on their respective Capital Commitments and not in excess of the Subscriber’s Capital Commitment, without defense, counterclaim or offset (including without limitation any defense of fraud or mistake, or otherwise become any defense under Section 365 of the U.S. Bankruptcy Code but excluding, for the avoidance of doubt, any defense available under this Subscription Agreement), all of which will, to the fullest extent permitted by law, be waived as against the lenders (provided, however, that the foregoing waiver of defenses shall be of no force or remain directly effect if and to the extent that the existence of the waiver would constitute or indirectly liable result in there being a prohibited transaction under ERISA or Section 4975 of the Code), (2) that all Drawdown Purchases or Catch-Up Purchases made by the Subscriber in connection with a facility will be made to an account (in which such lenders may have a security interest under relevant security documentation) as directed by the Fund or the lenders (if authorized to make such direction under the relevant security documentation), and (3) that any lender or credit party under a Subscription Facility is extending credit to the Fund in reliance on such Subscriber’s funding its Capital Commitments as such lender’s primary source of repayment. For the avoidance of doubt, a Drawdown Purchase or Catch-Up Purchase made by the Subscriber upon the request of a lender shall reduce the Subscriber’s Capital Commitment and be treated in all respects in the same manner as a Drawdown Purchase or Catch-Up Purchase, as applicable, made upon the request of the Fund. Notwithstanding anything in this Subscription Agreement to the contrary, the Subscriber acknowledges and agrees: (i) that any limitation with respect to any IndebtednessCapital Contribution shall not be applicable with respect to any Drawdown Notice the purpose of which is to repay amounts due under a Subscription Facility, except:
(a) regardless of whether the Obligations;
(b) Senior Notes in an aggregate principal amount not to exceed $4,350,000,000;
(c) Indebtedness of any Subsidiary of Borrower to Borrower related Drawdown Notice is issued by the Fund or any other such Subsidiary lender or of Borrower to any of its Subsidiariescredit party under the Subscription Facility; provided that (i) all such Indebtedness, if owed to a Credit Party, shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral Document, (ii) all if such Indebtedness owing by a Credit Party Subscriber is entitled to a Subsidiary that is not a Credit Party withdraw from the Fund pursuant to any provision of this Subscription Agreement, prior to the effectiveness of such withdrawal, such Subscriber shall be unsecured and subordinated in right obligated to fund its pro rata share of payment Drawdown Purchases necessary to the payment in full of the Obligations pursuant to cure any borrowing base default under the terms of any Subscription Facility as a subordination agreement with respect to direct or indirect result of such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness and (iii) in respect of any Indebtedness owing by a Subsidiary that is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d);
(d) Indebtedness incurred by Borrower or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) or from guaranties or letters of credit, surety bonds, performance bonds or similar obligations securing the performance of Borrower or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or any of its Subsidiaries;
(e) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal or similar obligations incurred in the ordinary course of business;
(f) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accounts;
(g) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees of and licensees to and of Borrower and its Subsidiaries;withdrawal.
Appears in 2 contracts
Sources: Subscription Agreement (KKR FS Income Trust), Subscription Agreement (KKR FS Income Trust)
Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to to, any Indebtedness, except:
(a) the Obligations;
(b) Senior Notes in an aggregate principal amount not to exceed $4,350,000,000;
(c) Indebtedness of (i) any Subsidiary of Borrower Credit Party owing to Borrower or any other such Credit Party and (ii) any Non-Guarantor Subsidiary or of Borrower owing to any of its Subsidiariesother Non-Guarantor Subsidiary; provided that (iA) all such IndebtednessIndebtedness shall be evidenced by the Intercompany Note and, if owed to a Credit Party, shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral DocumentSecurity Agreement, (iiB) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a any Credit Party shall be unsecured and unsecured, (C) all such Indebtedness shall be subordinated in right of payment to the payment Payment in full Full of the Obligations pursuant to the terms of a subordination agreement with respect to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness Intercompany Note, and (iiiD) any payment by any such Guarantor Subsidiary under any guaranty of the Obligations shall result in respect a pro rata reduction of the amount of any Indebtedness owing owed by a such Subsidiary that is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d);
(d) Indebtedness incurred by any Borrower or to any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) or from guaranties or letters of credit, surety bonds, performance bonds or similar obligations securing the performance of Borrower or any whose benefit such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or any of its Subsidiariespayment is made;
(ec) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal or similar obligations incurred in the ordinary course Ordinary Course of businessBusiness;
(fd) Indebtedness in respect of netting services, services and overdraft protections and otherwise in connection with deposit accountscustomary Deposit Accounts maintained by the Borrowers and their Subsidiaries as part of their ordinary cash management program;
(ge) guaranties in the ordinary course Ordinary Course of business Business of the obligations of suppliers, customers, franchisees of and licensees of the Borrowers and their Subsidiaries;
(f) guaranties by any Borrower of Indebtedness of a Guarantor Subsidiary or guaranties by any Guarantor Subsidiary of Indebtedness of a Borrower or another Guarantor Subsidiary with respect, in each case, to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.1; provided that if the Indebtedness that is being guarantied is unsecured and/or subordinated to the Obligations, the guaranty shall also be unsecured and/or subordinated to the Obligations;
(g) Indebtedness existing on the Closing Date and described in Schedule 6.1, but not any extensions, renewals or replacements of such Indebtedness except Permitted Refinancing Debt with respect thereto; provided that such Permitted Refinancing Debt shall not be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(h) Indebtedness incurred by any Borrower or any of its Subsidiaries with respect to Capital Leases and purchase money obligations in an aggregate amount not to exceed $2,000,000 at any time outstanding; provided that any such Indebtedness (i) 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 (ii) shall be secured only by the asset acquired, constructed, leased or improved in connection with the incurrence of such Indebtedness;
(i) Indebtedness incurred by any Borrower or any of its Subsidiaries in the Ordinary Course of Business owed to any Person providing property, casualty, liability or other insurance to any Borrower or any of its Subsidiaries, so long as the amount of such Indebtedness is not in excess of the amount of the unpaid cost of, and shall be incurred only to defer the cost of, such insurance for the year in which such Indebtedness is incurred and such Indebtedness is outstanding only during such year;
Appears in 2 contracts
Sources: Second Amendment to Credit and Guaranty Agreement (Americas Carmart Inc), Credit and Guaranty Agreement (Americas Carmart Inc)
Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectlyIncur, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect permit to exist any Indebtedness, except:
(a) Indebtedness existing or committed on the ObligationsClosing 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 (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) Senior Notes in an aggregate principal amount not Indebtedness created hereunder (including pursuant to exceed $4,350,000,000Section 2.21) and under the other Loan Documents and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(c) Indebtedness of Holdings, the Borrowers or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes;
(d) Indebtedness owed to (including obligations in respect of Borrower letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to Holdings, either Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent with past practice or industry practices;
(e) Indebtedness of the 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 such Subsidiary or of Borrower to any of its SubsidiariesSubsidiary; provided provided, that (i) all such Indebtedness, if owed to a Credit Party, shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral Document, (ii) all such Indebtedness owing by a Credit Party to a of any Subsidiary that is not a Credit Loan Party owing to the Loan Parties incurred pursuant to this Section 6.01(e) shall be unsecured 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 payment Loan Obligations under this Agreement on subordination terms described in full of the Obligations pursuant to the terms of a subordination agreement with respect to such Indebtedness intercompany note substantially in the form of Exhibit J-2 among K hereto or on other subordination terms reasonably satisfactory to the Credit Parties Administrative Agent and such Subsidiaries party to such the Borrower Representative;
(f) Indebtedness and (iii) in respect of any Indebtedness owing by a Subsidiary that is not a Credit 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 or consistent with past practice or industry practices, including those incurred to a Credit Partysecure health, such Indebtedness is permitted as an Investment under safety and environmental obligations in the proviso to Section 6.6(d)ordinary course of business or consistent with past practice or industry practices;
(dg) Indebtedness incurred by Borrower or any of its Subsidiaries arising from agreements providing for indemnificationthe honoring by a bank or other financial institution of a check, adjustment of purchase price draft or similar obligations (including Indebtedness consisting instrument drawn against insufficient funds in the ordinary course of the deferred purchase price of property acquired in a Permitted Acquisition) business or from guaranties or letters of credit, surety bonds, performance bonds or similar obligations securing the performance of Borrower or any such Subsidiary pursuant to such agreementsother cash management services, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or any of its Subsidiaries;
(e) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal or similar obligations each case incurred in the ordinary course of business;
(fi) Indebtedness of a Subsidiary acquired after the Closing Date or a person merged or consolidated with Holdings or any Subsidiary after the Closing Date and Indebtedness otherwise incurred or assumed by Holdings or any Subsidiary in connection with the acquisition of assets or Equity Interests (including a Permitted Business Acquisition), where such acquisition, merger or consolidation is not prohibited by this Agreement; provided, that, (x) in the case of any such Indebtedness secured by Other First Liens, the Net First Lien Leverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger or consolidation, the incurrence of such Indebtedness and the use of proceeds thereof and any related transactions is not greater than 3.50 to 1.00, (y) in the case of any such Indebtedness secured by Junior Liens, the Net Secured Leverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger or consolidation, the incurrence of such Indebtedness and the use of proceeds thereof and any related transactions is not greater than 4.50 to 1.00, and (z) in the case of any other such Indebtedness, the Net Total Leverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger or consolidation, the incurrence of such Indebtedness and the use of proceeds thereof and any related transactions is not greater than 5.60 to 1.00; provided, that the aggregate principal amount of Indebtedness outstanding under this clause (h) that is incurred by a Subsidiary other than a Loan Party immediately after giving effect to such acquisition, merger or consolidation, the incurrence of such Indebtedness and the use of proceeds thereof and any related transactions shall not exceed the greater of $100,000,000 and 55% of Relevant EBITDA; and (ii) any Permitted Refinancing Indebtedness incurred to Refinance any such Indebtedness;
(i) (x) Capitalized Lease Obligations, mortgage financings and other Indebtedness incurred by Holdings or any Subsidiary prior to or within 270 days after the acquisition, lease, construction, repair, replacement or improvement of the respective property (real or personal, and whether through the direct purchase of property or the Equity Interest of any person owning such property) permitted under this Agreement in order to finance such acquisition, lease, construction, repair, replacement or improvement, in an aggregate principal amount that immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(i)(x), would not exceed the greater of $50,000,000 and 30% of Relevant EBITDA and (y) any Permitted Refinancing Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accountsthereof;
(gj) guaranties Capitalized Lease Obligations and any other Indebtedness incurred by Holdings or any Subsidiary arising from any Sale and Lease-Back Transaction that is permitted under Section 6.03 and any Permitted Refinancing Indebtedness in respect thereof;
(k) other Indebtedness of Holdings or any Subsidiary, in an aggregate principal amount that, immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(k), would not exceed the greater of $90,000,000 and 50% of Relevant EBITDA, and any Permitted Refinancing Indebtedness in respect thereof;
(l) Indebtedness of Holdings or any Subsidiaries in an aggregate outstanding principal amount not greater than 100% of the net cash proceeds received by Holdings or either Borrower from (x) the issuance or sale of its Qualified Equity Interests or (y) a contribution to its common equity with the net cash proceeds from the issuance and sale by Holdings or a Parent Entity of its Qualified Equity Interests or a contribution to its common equity (in each case of (x) and (y), other than proceeds from the sale of Equity Interests to, or contributions from, Holdings or any of its Subsidiaries), to the extent such net cash proceeds do not constitute Excluded Contributions;
(m) Guarantees (i) by Holdings, the Borrowers or any other Loan Party of any Indebtedness of Holdings, the Borrowers or any Subsidiary Loan Party permitted to be incurred under this Agreement, (ii) by Holdings, any Borrower or any other Loan Party of Indebtedness otherwise permitted hereunder of any Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(v)), (iii) by any Subsidiary that is not a Subsidiary Loan Party of Indebtedness of another Subsidiary that is not a Subsidiary Loan Party, and (iv) by Holdings, Intermediate Holdings or the Borrowers of Indebtedness of Subsidiaries that are not Subsidiary Loan Parties incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(t) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(v)); provided, that Guarantees by either Borrower or any other Loan Party under this Section 6.01(m) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Loan Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(n) Indebtedness arising from agreements of Holdings, either Borrower or any Subsidiary providing for indemnification, adjustment of purchase or acquisition price or similar obligations (including earn-outs), in each case, incurred or assumed in connection with the Transactions, any acquisition permitted by this Agreement, any Permitted Business Acquisition, other Investments or the disposition of any business, assets or a Subsidiary not prohibited by this Agreement;
(o) Indebtedness in respect of letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations and trade letters of credit (other than obligations in respect of other Indebtedness) in the ordinary course of business or consistent with past practice or industry practices;
(p) [Reserved];
(i) Indebtedness secured by Other First Liens so long as immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, the Net First Lien Leverage Ratio on a Pro Forma Basis is not greater than 3.25 to 1.00; provided, that any Indebtedness outstanding under this clause (q)(i) shall be subject to Section 2.21(b)(vii); provided further, that the aggregate principal amount of Indebtedness outstanding under this clause (q)(i) at such time that is incurred by a Subsidiary other than a Subsidiary Loan Party shall not exceed, when taken together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(q)(i), Section 6.01(r)(i) and
Section 6.01 (s)(i) that are incurred by Subsidiaries other than the Loan Parties, the greater of $100,000,000 and 55% of Relevant EBITDA, and (ii) any Permitted Refinancing Indebtedness in respect thereof; provided further that (x) the final maturity date of such Indebtedness is on or after the Latest Maturity Date and (y) the Weighted Average Life to Maturity of such Indebtedness is greater than or equal to the Weighted Average Life to Maturity of the Class of Term Loans with the longest Weighted Average Life to Maturity;
(i) Indebtedness secured by Junior Liens so long as immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, the Net Secured Leverage Ratio on a Pro Forma Basis is not greater than 4.25 to 1.00; provided, that the aggregate principal amount of Indebtedness outstanding under this clause (r)(i) at such time that is incurred by a Subsidiary other than a Subsidiary Loan Party shall not exceed, when taken together with the aggregate principal amount of any other Indebtedness outstanding pursuant to Section 6.01(q)(i), this Section 6.01(r)(i) and Section 6.01(s)(i) that are incurred by Subsidiaries other than the Loan Parties, the greater of $100,000,000 and 55% of Relevant EBITDA, and (ii) any Permitted Refinancing Indebtedness in respect thereof; provided further that (x) the final maturity date of such Indebtedness is on or after the Latest Maturity Date; (y) the Weighted Average Life to Maturity of such Indebtedness is greater than or equal to the Weighted Average Life to Maturity of the Class of Term Loans with the longest Weighted Average Life to Maturity; and (z), the terms of such Indebtedness do not provide for any scheduled repayment, mandatory redemption or sinking fund obligations prior to the Latest Maturity Date (other than customary offers to repurchase or mandatory prepayment provisions upon a change of control, asset sale or event of loss and customary acceleration rights after an event of default);
(i) other Indebtedness so long as immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 5.60 to 1.00; provided, that the aggregate principal amount of Indebtedness outstanding under this clause (s)(i) at such time that is incurred by a Subsidiary other than a Loan Party shall not exceed, when taken together with the aggregate principal amount of any other Indebtedness outstanding pursuant to Section 6.01(q)(i), Section 6.01(r)(i) and this Section 6.01(s)(i) that are incurred by Subsidiaries other than the Loan Parties, the greater of $100,000,000 and 55% of Relevant EBITDA, and (ii) any Permitted Refinancing Indebtedness in respect thereof; provided, further that (x) the final maturity date of such Indebtedness is on or after the Latest Maturity Date; (y) the Weighted Average Life to Maturity of such Indebtedness is greater than or equal to the Weighted Average Life to Maturity of the Class of Term Loans with the longest Weighted Average Life to Maturity; and (z), the terms of such Indebtedness do not provide for any scheduled repayment, mandatory redemption or sinking fund obligations prior to the Latest Maturity Date (other than customary offers to repurchase or mandatory prepayment provisions upon a change of control, asset sale or event of loss and customary acceleration rights after an event of default);
(t) Indebtedness of Subsidiaries that are not Loan Parties in an aggregate principal amount outstanding that, immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(t), would not exceed the greater of $50,000,000 and 30% of Relevant EBITDA, and any Permitted Refinancing Indebtedness in respect thereof;
(u) Indebtedness incurred in the ordinary course of business in respect of obligations of suppliersHoldings or any Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided, customersthat 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, franchisees consultants or independent contractors of and licensees Holdings (or, to and of Borrower and the extent such work is done for Holdings or its Subsidiaries, any direct or indirect parent thereof) or any Subsidiary incurred in the ordinary course of business;
(w) Indebtedness in connection with Permitted Securitization Financings;
(x) obligations in respect of Cash Management Agreements;
(y) Refinancing Notes and any Permitted Refinancing Indebtedness incurred in respect thereof;
(z) Indebtedness in an aggregate principal amount outstanding not to exceed at the time of incurrence the Incremental Amount available at such time, provided that any such Indebtedness if in the form of term loans secured by liens ranking pari passu with liens securing the Term Loans shall be subject to the requirements of Section 2.21(b)(vii), and any Permitted Refinancing Indebtedness in respect thereof;
(aa) Guarantees of Indebtedness under customer financing lines of credit entered into in the ordinary course of business;
(bb) Indebtedness of, incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures in an aggregate principal amount that, immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(bb), would not exceed the greater of $50,000,000 and 30% of Relevant EBITDA, and any Permitted Refinancing Indebtedness in respect thereof;
(cc) Indebtedness issued by Holdings or any Subsidiary to current or former officers, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of Holdings or any Parent Entity permitted by Section 6.06;
(dd) Indebtedness consisting of obligations of Holdings or any Subsidiary under deferred compensation or other similar arrangements incurred by such person in connection with the Transactions and Permitted Business Acquisiti
Appears in 2 contracts
Sources: Credit Agreement (Presidio, Inc.), Credit Agreement (Presidio, Inc.)
Indebtedness. No Credit Party shallCompany shall not, nor and shall it not permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to to, any Indebtedness, except:
(ai) Company and its Subsidiaries may become and remain liable with respect to the Obligations;
(bii) Senior Notes Company and its Subsidiaries (other than Dormant Subsidiaries) may become and remain liable with respect to Contingent Obligations permitted by subsection 7.4 and, upon any matured obligations actually arising pursuant thereto, the Indebtedness corresponding to the Contingent Obligations so extinguished;
(iii) Company and its Subsidiaries (other than Dormant Subsidiaries) may become and remain liable with respect to Indebtedness in respect of Capital Leases and Indebtedness of Company and its Subsidiaries secured by Liens permitted by subsection 7.2A(ii) in an aggregate principal amount not to exceed $4,350,000,00020,000,000 at any time outstanding;
(civ) Company may become and remain liable with respect to Indebtedness to any Subsidiary, and any wholly-owned Subsidiary of Company (other than any Dormant Subsidiary) may become and remain liable with respect to Indebtedness to Company or any Subsidiary of Borrower Guarantor, and any Foreign Subsidiary may become and remain liable with respect to Borrower or any other such Subsidiary or of Borrower Indebtedness to any of its Subsidiariesanother Foreign Subsidiary; provided that (ia) a Lien on all such Indebtedness, if owed intercompany Indebtedness owing to a Credit Loan Party (excluding Indebtedness of a Foreign Subsidiary except as provided below) shall have been granted to Administrative Agent for the benefit of Lenders, (b) if such intercompany Indebtedness is evidenced by a promissory note or other instrument owing to a Loan Party, shall be evidenced by the Intercompany Note or another such promissory note and or instrument shall be subject have been pledged to a First Priority Lien Administrative Agent pursuant to the applicable Collateral DocumentSecurity Agreement, and (iic) the aggregate amount (without duplication) of all such Indebtedness owing of Foreign Subsidiaries to Company or any Subsidiary Guarantor, all Investments in Foreign Subsidiaries permitted by a Credit Party to a Subsidiary that is subsection 7.3(ix) and all Contingent Obligations permitted by subsection 7.4(ix) does not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of a subordination agreement with respect to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness and exceed $40,000,000 (iii) in respect of plus any Indebtedness owing Additional Contributions not being utilized by a Subsidiary that is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d);
(d) Indebtedness incurred by Borrower Company or any of its Subsidiaries arising from agreements providing for indemnificationany other purpose under this subsection 7.1 or subsection 7.3 or 7.4 (other than Additional Contributions loaned to a Foreign Subsidiary under this subsection 7.1(iv), adjustment and the corresponding Investment in respect of such loan, for the purpose of (1) Permitted Acquisitions under subsection 7.3(viii), (2) Permitted Acquisitions or Investments under subsection 7.3(xiv) or (3) satisfying Contingent Obligations under subsection 7.4(ix))) at any time outstanding; provided that any such Indebtedness of a wholly-owned Foreign Subsidiary to Company or a Subsidiary Guarantor shall be evidenced by a promissory note or other instrument (except to the extent such note or instrument would result in a tax or otherwise have adverse consequences on or with respect to such Foreign Subsidiaries) and such promissory note or other instrument shall be pledged to Administrative Agent;
(v) Company and its Subsidiaries (other than Dormant Subsidiaries), as applicable, may remain liable with respect to Indebtedness described in Schedule 7.1 annexed hereto and any refinancings, refundings, renewals or extensions thereof that in any case do not increase the principal or commitment amount thereof;
(vi) Company may remain liable with respect to Indebtedness evidenced by the Subordinated Notes in an amount not to exceed the aggregate principal amount thereof outstanding on the Closing Date; provided that the Subordinated Notes have been subject to legal or covenant defeasance;
(vii) Company and its Subsidiaries (other than Dormant Subsidiaries) may become and remain liable with respect to other Indebtedness in an aggregate principal amount not to exceed $20,000,000 at any time outstanding;
(viii) Company and its Subsidiaries (other than Dormant Subsidiaries) may become and remain liable with respect to Indebtedness of any Person assumed in connection with any acquisition of such Person permitted by subsection 7.3 and a Person that becomes a direct or indirect wholly-owned Subsidiary of Company as a result of any acquisition permitted by subsection 7.3 may remain liable with respect to Indebtedness existing on the date of such acquisition; provided that such Indebtedness is not created in anticipation of such acquisition;
(ix) Company and its Subsidiaries (other than Dormant Subsidiaries) may become and remain liable with respect to refinancings or renewals of Indebtedness described in clause (viii) above; provided that (a) any such refinancing Indebtedness is in an aggregate principal amount not greater than the aggregate principal amount of the Indebtedness being renewed or refinanced, plus the amount of any interest, fees and premiums required to be paid thereon and reasonable fees and expenses associated therewith, (b) such refinancing Indebtedness has a later or equal final maturity and longer or equal weighted average life than the Indebtedness being renewed or refinanced, (c) the covenants, events of default, subordination and other provisions thereof (including any guarantees thereof) shall be, in the aggregate no less favorable to Lenders than those contained in the Indebtedness being renewed or refinanced, and (d) no Event of Default shall have occurred or be continuing immediately prior and after giving effect thereto;
(x) Company and its Subsidiaries may become and remain liable with respect to Indebtedness consisting of insurance premium financing;
(xi) Company and its Subsidiaries (other than Dormant Subsidiaries) may become and remain liable with respect to obligations in respect of purchase price or other similar obligations adjustments incurred by Company and its Subsidiaries (including Indebtedness consisting of the deferred purchase price of property acquired other than Dormant Subsidiaries) in a Permitted Acquisition) or from guaranties or letters of credit, surety bonds, performance bonds or similar obligations securing the performance of Borrower Acquisition or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions other Investment or disposition expressly permitted dispositions of any business, assets or Subsidiary of Borrower or any of its Subsidiaries;hereunder; and
(exii) Indebtedness which Company and its Subsidiaries (other than Dormant Subsidiaries) may be deemed become and remain liable with respect to exist pursuant to any guaranties, performance, surety, statutory, appeal or similar obligations incurred in the ordinary course of business;
(f) Indebtedness in respect of netting services, overdraft protections sale and otherwise in connection with deposit accounts;
(g) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees of and licensees to and of Borrower and its Subsidiaries;lease-back transactions permitted by subsection 7.10(b).
Appears in 2 contracts
Sources: Credit Agreement (United Online Inc), Credit Agreement (United Online Inc)
Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, createCreate, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except:
(a) the Obligations;
(bi) Senior Indebtedness in respect of the 2023 Debentures, (ii) Indebtedness of the U.S. Borrower in respect of the 2020 Notes in an aggregate principal amount not to exceed $4,350,000,000600,000,000 and guaranty obligations of any U.S. Guarantor in respect of such Indebtedness, (iii) any Permitted Refinancing of the Indebtedness described in clause (i) or (ii), and (iv) Indebtedness in respect of the Existing Notes to the extent such Existing Notes remain outstanding after consummation of the tender offer therefor;
(c) Indebtedness of any Restricted Subsidiary owed to any Borrower or to any other Restricted Subsidiary, or of any Borrower owed to Borrower any Restricted Subsidiary or any other such Subsidiary or of Borrower to any of its SubsidiariesBorrower; provided provided, that (i) all such IndebtednessIndebtedness shall be evidenced by an intercompany note, and, if owed to a Credit Loan Party, shall be evidenced by (subject to the Intercompany Note or another promissory note and shall Agreed Security Principles) be subject to a First Priority Lien pursuant to the applicable Collateral DocumentSecurity Documents, (ii) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to in a manner consistent with the terms of a subordination agreement with respect to such provisions set forth in Section 7.07 and shall be Subordinated Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness and hereunder, (iii) any payment by any such Guarantor under any guaranty of the Obligations shall result in respect a pro tanto reduction of the amount of any Indebtedness owing owed by a such Subsidiary that to such Borrower or to any of its Subsidiaries for whose benefit such payment is not a Credit Party to a Credit Party, made and (iv) such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d)6.06;
(1) unsecured Indebtedness of U.S. Borrower, the net proceeds of which are used solely to (i) consummate Permitted Acquisitions or (ii) repay the Term Loans (or repay Revolving Loans with a permanent equivalent reduction in the Revolving Commitments); provided, in each case, that such Indebtedness (a) matures at least three months after the maturity date of the Term Loans, (b) has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of the Term Loans, (c) does not contain maintenance covenants that are more restrictive than Sections 6.07(a) and (b) and (d) if guaranteed, is guaranteed only by U.S. Guarantors; provided, that both immediately prior and after giving effect to the incurrence thereof, (x) no Default or Event of Default shall exist or result therefrom and (y) the U.S. Borrower shall be in compliance with the covenants set forth in Sections 6.07(a) and (b) after giving pro forma effect to the incurrence of such Indebtedness and the consummation of such Permitted Acquisition or repayment of such Loans, as applicable and (2) any Permitted Refinancings of such Indebtedness;
(e) Indebtedness incurred by Borrower or any of its Subsidiaries Group Member arising from agreements providing for indemnification, adjustment of purchase price price, other compensation or similar obligations (including including, Indebtedness consisting of the deferred purchase price of assets or property acquired in a Permitted Acquisition) or from guaranties or letters of credit, surety bonds, performance bonds or similar obligations securing the performance of Borrower or any such Subsidiary pursuant to such agreements), in connection with Permitted Acquisitions Acquisitions, permitted Investments or permitted dispositions of any business, assets or Subsidiary of Borrower or any of its SubsidiariesGroup Member;
(ef) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal bonds or similar obligations incurred in the ordinary course of business;
(fg) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accounts;
(gh) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees of and licensees of any Group Member;
(i) guaranties by (i) any Borrower of Indebtedness of a Guarantor or any other Borrower or guaranties by a Guarantor of Indebtedness of any Borrower or any other Guarantor with respect, in each case, to Indebtedness otherwise permitted to be incurred by such Borrower or such Guarantor pursuant to this Section 6.01 (other than clauses (b) and (c) of this Section); provided, that if the Indebtedness that is being guarantied is unsecured and/or subordinated to the Obligations, the guaranty shall also be unsecured and/or subordinated to the Obligations, (ii) any Group Member that is not a Loan Party of Indebtedness of any other Group Member that is not a Loan Party and (iii) the U.S. Borrower of Indebtedness of any Group Member that is not a Loan Party incurred in the ordinary course of business on ordinary business terms so long as such Indebtedness is otherwise permitted to be incurred under Section 6.01(r) to the extent such guaranties are unsecured and its Subsidiariesotherwise permitted as an Investment under Section 6.06 (other than Section 6.06(q));
(j) Indebtedness existing on the Closing Date which is described in Schedule 6.01 and any Permitted Refinancing thereof;
(k) Indebtedness (i) in an amount not to exceed at any one time outstanding $40,000,000 (or, if the Incurrence Test is satisfied on a pro forma basis, 0.75% of Consolidated Total Assets, if greater), which is incurred with respect to Capital Leases or constitutes purchase money Indebtedness to finance the acquisition, lease, construction or improvement of assets or property and any Permitted Refinancing in respect thereof; provided, that any such Indebtedness shall be secured only by the asset acquired, leased, constructed or improved in connection with the incurrence of such Indebtedness, be incurred within 270 days of the acquisition, lease, construction or improvement of the relevant equipment or other asset and constitute not less than 75.0% of the aggregate consideration paid with respect to such acquisition, lease, construction or improvement and (ii) constituting Attributable Indebtedness with respect to any Sale and Lease-Back permitted under Section 6.10 in an amount not to exceed at any one time outstanding $35,000,000;
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (Phillips Van Heusen Corp /De/), Credit and Guaranty Agreement (Phillips Van Heusen Corp /De/)
Indebtedness. No Credit Note Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except:
(a) the Obligations;
(b) Senior Notes in an aggregate principal amount not to exceed $4,350,000,000;
(c) Indebtedness of any Guarantor Subsidiary of Borrower to Borrower Company or to any other such Subsidiary Guarantor Subsidiary, or of Borrower Company to any of its SubsidiariesGuarantor Subsidiary; provided that provided, (i) all such Indebtedness, if owed to a Credit Party, Indebtedness shall be evidenced by the Intercompany Note or another promissory note and Subordination, and shall be subject to a First Priority Lien pursuant to the applicable Collateral DocumentPledge and Security Agreement, and (ii) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment Payment in full Full of the all Obligations pursuant to the terms of the Intercompany Note and Subordination;
(c) Indebtedness for (i) deferred salaried compensation to a subordination agreement with respect Note Party’s employees, not to such Indebtedness substantially exceed $250,000 in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness aggregate, and (iiiii) liabilities of Note Parties associated with accrued but unused vacation time of employees of the Note Parties incurred in respect the ordinary course of any Indebtedness owing by a Subsidiary that is not a Credit Party business and pursuant to a Credit Party, such Indebtedness is permitted as an Investment under applicable laws governing the proviso to Section 6.6(d)Note Parties’ businesses;
(d) Indebtedness incurred by Borrower Company or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) customary indemnification or from customary guaranties or letters of credit, surety bonds, bonds or performance bonds or similar obligations securing the performance of Borrower Company or any such Subsidiary pursuant to such agreements, agreements in connection with Permitted Acquisitions or Acquisitions, permitted dispositions of any business, assets or Subsidiary of Borrower Company or any of its Subsidiaries, or constituting reimbursement obligations with respect to letters of credit issued in the ordinary course of business 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 such similar reimbursement-type obligations;
(e) Indebtedness which that may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal or similar bonds or statutory obligations incurred in the ordinary course of business, and guarantee obligations in respect of any such Indebtedness;
(f) Indebtedness in respect of netting services, overdraft protections and otherwise other services provided in connection with deposit accountsaccounts in the ordinary course of business;
(g) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees of and licensees to and of Borrower Company and its Subsidiaries;
(h) guaranties by Company of Indebtedness of a Guarantor Subsidiary or guaranties by a Subsidiary of Company of Indebtedness of Company or a Guarantor Subsidiary with respect, in each case, to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.1; provided, that if the Indebtedness that is being guaranteed is unsecured and/or subordinate to the Obligations (in payment or Lien priority), then such guaranties shall also be unsecured and/or subordinated to the Obligations to the same extent as such guaranteed Indebtedness;
(i) Indebtedness described in Schedule 6.1, but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement, and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Purchasers than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(j) Indebtedness in an aggregate amount not to exceed at any time $3,000,000 consisting of (x) Capital Lease Obligations and (y) other purchase money Indebtedness; provided, in the case of clause (x), that any such Indebtedness shall be secured only by the asset subject to such Capital Lease, and, in the case of clause (y), that any such Indebtedness shall (i) be secured only by the asset acquired in connection with the incurrence of such Indebtedness and (ii) constitute 100% of the aggregate consideration paid with respect to such asset;
(k) Indebtedness owed to any entity financing insurance premiums or providing property, casualty or liability insurance to Company or any Subsidiary, so long as such indebtedness shall not be in excess of the amount of the unpaid cost of, and shall be incurred only to defer the cost of, such insurance for the year in which such indebtedness is incurred and such indebtedness shall be outstanding only during such year;
(l) Indebtedness owed by a Managed Company to a Note Party incurred after the Closing Date in an amount not to exceed $1,000,000;
(m) obligations under Hedge Agreements which are not for speculative purposes;
(n) other Indebtedness (other than Indebtedness of the types listed in Section 6.1(a) – 6.1(m) and 6.1(p) and 6.1(q)) in an aggregate principal amount not to exceed $500,000 at any time outstanding;
(o) the issuance of the Series A Preferred Stock in an aggregate amount not to exceed $125,000,000, of which up to $25,000,000, if not issued in an “at the market” or underwritten offering, may be used by Company as consideration for a Permitted Acquisition or otherwise with the Purchaser’s prior written consent;
(p) on and prior to the Initial Note Date, Indebtedness under the Goldman NPA; and
(q) Indebtedness obtained for capital-raising purposes that (1) is contractually subordinate to the Obligations and subject to an applicable contractual intercreditor agreement on such terms as the Purchasers and the Collateral Agent agree in their sole discretion and (2) is subject to terms, conditions, prepayments, maturity, security and guarantee limitations as the Purchasers and the Collateral Agent agree in their sole discretion.
Appears in 2 contracts
Sources: Master Note Purchase Agreement (Ontrak, Inc.), Master Note Purchase Agreement (Acuitas Group Holdings, LLC)
Indebtedness. No Credit Party shall, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except:
(a) the Obligations;
(b) Senior Notes in an aggregate principal amount not to exceed $4,350,000,000[Reserved];
(c) Indebtedness of any Subsidiary of Borrower to Borrower or any other such Subsidiary or of Borrower to any of among Company and its Subsidiaries; provided that (i) all such Indebtedness, if owed to a Credit Party, shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral Document, (ii) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of a subordination agreement with respect to such Indebtedness substantially Restricted Subsidiaries arising in the form Ordinary Course of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness and (iii) in respect of any Indebtedness owing by a Subsidiary that is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d)Business Activities;
(d) Indebtedness incurred by Borrower Company or any of its Restricted Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) or from guaranties or letters of credit, surety bonds, performance bonds or similar obligations securing the performance of Borrower or any such Subsidiary pursuant to such agreements, incurred in connection with any transactions permitted by this Agreement including, without limitation, Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or any of its SubsidiariesAcquisitions;
(e) Indebtedness which may be deemed to exist pursuant to any guarantiesguaranties of obligations other than Indebtedness, performance, surety, statutory, appeal or similar obligations incurred in the ordinary course Ordinary Course of businessBusiness Activities;
(f) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accountscustomary Deposit Accounts maintained by a Credit Party or any Restricted Subsidiary as part of its ordinary cash management program;
(g) performance guaranties in the ordinary course Ordinary Course of business Business Activities of the obligations (other than Indebtedness) of suppliers, customers, franchisees of and licensees to and of Borrower Company and its Restricted Subsidiaries;
(h) guaranties (i) by any Credit Party of Indebtedness of another Credit Party (other than guaranties by any Subsidiary Guarantor of Indebtedness of Company) or guaranties by a Restricted Subsidiary of Company of Indebtedness of any Credit Party (other than guaranties by any Restricted Subsidiary of Indebtedness of Company) with respect, in each case, to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.1 and (ii) guaranties of Permitted Exchange Indebtedness by any Credit Party;
(i) Indebtedness existing on the Closing Date (other than lines of credit of the Company and Indebtedness permitted pursuant to Section 6.1(s));
(j) Indebtedness of Company or any of its Restricted Subsidiaries under Rate Management Transactions entered into in the Ordinary Course of Business Activities and not for speculative purposes;
(k) purchase money Indebtedness of Company or any of its Restricted Subsidiaries; provided, that (x) in the case of any such Indebtedness from aircraft financing, such Indebtedness (1) may be incurred at the time of purchase or within sixty (60) days thereafter, (2) shall be secured solely by the applicable aircraft and intangible contract rights and proceeds directly related thereto and (3) shall constitute not more than ninety-five percent (95%) of the aggregate consideration paid with respect to such asset; and (y) any other Indebtedness under this clause (k) (A) shall be secured only by the asset acquired in connection with the incurrence of such Indebtedness, and (B) shall constitute not more than ninety-five percent (95%) of the aggregate consideration paid with respect to such asset;
(i) Permitted Funding Indebtedness incurred to finance the purchase of aircraft pursuant to existing facilities with ECA in effect as of the Closing Date, which shall not exceed $100,000,000 for any individual transaction and (ii) Permitted Funding Indebtedness not to exceed $100,000,000 in any individual transaction or any series of related transactions;
(m) Permitted Refinancing Indebtedness of Indebtedness described in clause (a), (i) or (k) (including subsequent refinancings of the foregoing that constitute Permitted Refinancing Indebtedness); provided, any such Indebtedness, to the extent secured, shall not be secured by any collateral other than collateral that secured the Indebtedness being refinanced;
(n) Indebtedness incurred or assumed in connection with or related to Bank Activities; provided that (i) prior to adoption of the Approved Restructuring Plan, Indebtedness may be incurred in connection with Bank Activities only with the consent of a majority in number of the members of the Lenders Steering Committee, (ii) upon the adoption of the Approved Restructuring Plan and prior to consummation thereof, Indebtedness may only be incurred in connection with Bank Activities only in accordance with the Approved Restructuring Plan, and (iii) after consummation of the Approved Restructuring Plan, Indebtedness may only be incurred in connection with Bank Activities if no Event of Default shall have occurred or shall occur after giving pro forma effect to such Indebtedness, in each of the foregoing clauses (i), (ii) and (iii), to the extent such Indebtedness shall not exceed $10,000,000 for any individual transaction or series of related transactions and an amount not to exceed $100,000,000 in the aggregate during the term of this Agreement;
(o) limited guaranties of obligations of financing subsidiaries that are Special Purpose Entities in connection with securitization and like transactions related to Ordinary Course of Business Activities (including, to the extent applicable, guaranties consistent with the delivery of a “true sale”/“absolute transfer” opinion with respect to any transfer by Company or any Subsidiary Guarantor to the applicable financing Restricted Subsidiary);
(p) guaranties by any Restricted Subsidiary that is not a Credit Party (other than Aerospace) of Indebtedness of another Restricted Subsidiary that is not a Credit Party;
(q) guaranties by Aerospace of Indebtedness for financing of newly acquired aircraft assets;
(r) guaranties by Company or any Restricted Subsidiary (other than a Subsidiary Guarantor) of Indebtedness of Restricted Subsidiaries that are not Credit Parties incurred for working capital purposes in the Ordinary Course of Business Activities;
(s) customary unsecured lines of credit (revolving and term) entered into in the Ordinary Course of Business Activities, in existence on the Closing Date and outstanding thereunder at any time thereafter in an aggregate amount not to exceed $3,200,000,000 for the Company and $800,000,000 in the aggregate for Foreign Subsidiaries;
(t) other unsecured Indebtedness of Company and its Foreign Subsidiaries incurred at a time when no Default or Event of Default shall have occurred and be continuing in an aggregate amount not to exceed at any time $250,000,000; and
(u) obligations of Restricted Subsidiaries to pay the deferred purchase price of receivables acquired in the trade finance business in connection with the Ordinary Course of Business Activities having a term of less than twelve (12) months.
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (Cit Group Inc), Credit and Guaranty Agreement (Cit Group Inc)
Indebtedness. No Credit Party Borrower shall, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except:
(a) the ObligationsSecured Obligations (including any Additional Term Loans and any Additional Revolving Loans);
(b) Senior Notes Indebtedness of a Borrower to any Restricted Subsidiary and/or of any Restricted Subsidiary to a Borrower or any other Restricted Subsidiary (including the Intercompany Proceeds Loan); provided that in the case of any Indebtedness of any Restricted Subsidiary that is not a Loan Party owing to a Loan Party, such Indebtedness shall be permitted as an aggregate principal amount Investment by Section 6.06; provided further that any Indebtedness of any Loan Party to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to exceed $4,350,000,000the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (it being understood that the subordination provisions in the Global Intercompany Note are acceptable to the Administrative Agent);
(c) Indebtedness of any Subsidiary of Borrower to Borrower or any other such Subsidiary or of Borrower to any of its Subsidiaries; provided that (i) all such Indebtedness, if owed to a Credit Party, shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral Document, (ii) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of a subordination agreement with respect to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness and (iii) in respect of any Indebtedness owing by a Subsidiary that is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d)[Reserved];
(d) Indebtedness incurred by Borrower or any of its Subsidiaries arising from agreements any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date or any other purchase of assets or Capital Stock, and Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) or arising from guaranties or guaranties, letters of credit, bank guaranties, surety bonds, performance bonds or similar obligations instruments securing the performance of a Borrower or any such Restricted Subsidiary pursuant to any such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or any of its Subsidiariesagreement;
(e) Indebtedness which may be deemed to exist of any Borrower and/or any Restricted Subsidiary (i) pursuant to any guarantiestenders, performancestatutory obligations, bids, leases, governmental contracts, trade contracts, surety, statutorystay, appeal customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
(f) Indebtedness of any Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including Banking Services Obligations and dealer incentive, supplier finance or similar programs;
(i) guaranties by any Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of any Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and 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;
(fh) Guarantees by any Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrowers, 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 respect the case of netting servicesany Guarantee by any Loan Party of the obligations of any non-Loan Party, overdraft protections and otherwise in connection with deposit accountsthe related Investment is permitted under Section 6.06;
(gi) guaranties Indebtedness of any Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and described on Schedule 6.01;
(j) Indebtedness of Restricted Subsidiaries that are not Loan Parties; provided that the aggregate outstanding principal amount of such Indebtedness shall not exceed the greater of $50,000,000 and 10.0% of Consolidated Total Assets as of the last day of the most recently ended Test Period;
(k) Indebtedness of any 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 any Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums in the ordinary course of business, (ii) take-or-pay obligations contained in supply arrangements in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of any Borrower and/or any Restricted Subsidiary with respect to Capital Leases and purchase money Indebtedness incurred prior to or within 270 days of the obligations acquisition, lease, completion of suppliersconstruction, customersrepair of, franchisees replacement, improvement to or installation of assets acquired in connection with the incurrence of such Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $50,000,000 and licensees 10.0% of Consolidated Total Assets as of the last day of the most recently ended Test Period;
(n) [Reserved];
(o) Indebtedness consisting of unsecured subordinated promissory notes in form and substance reasonably satisfactory to the Administrative Agent issued by a 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, Borrower or any subsidiary (or their respective Immediate Family Members) and not guaranteed by any Subsidiary of Holdings to finance the purchase or redemption of Capital Stock of any Parent Company permitted by Section 6.04(a);
(p) each Borrower and its SubsidiariesRestricted Subsidiaries may become and remain liable for any Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (j), (m), (q), (r), (u), (v), (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 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, (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 under Section 6.01 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 and constitutes a utilization of the relevant basket or exception), (ii) other than in the case of Refinancing Indebtedness with respect to clause (i), (m) or (u), (A) such Indebtedness has a final maturity on or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) other than with respect to revolving Indebtedness, such Indebtedness 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, (iii) the terms of any Refinancing Indebtedness with an original principal amount in excess of the Threshold Amount (excluding pricing, fees, premiums, rate floors, optional prepayment or redemption terms (and, if applicable, subordination terms) and, with respect to Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) above, security), are not, taken as a whole (as reasonably determined by the Borrower Representative), more favorable to the lenders providing such Indebtedness than those applicable to the Indebtedness being refinanced, refunded or replaced (other than any covenants or any other provisions applicable only to periods after the Latest Maturity Date as of such date or any covenants or provisions which are then-current market terms for the applicable type of Indebtedness), (iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (j), (m), (u) and (y) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause (and such Refinancing Indebtedness shall be deemed to be outstanding under such clause for purposes of determining compliance therewith), (v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 (it being understood that Holdings may not be the primary obligor of the applicable Refinancing Indebtedness if Holdings was not the primary obligor on the relevant refinanced Indebtedness), (A) such Indebtedness is secured only by Permitted Liens securing the Indebtedness being refinanced, refunded or replaced at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), (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 and (C) if the Indebtedness being refinanced, refunded or replaced was originally contractually subordinated to the Obligations in right of payment (or the Liens securing such Indebtedness were originally contractually subordinated to the Liens on the Collateral securing the Secured Obligations), such Indebtedness is contractually subordinated to the Obligations in right of payment (or the Liens securing such Indebtedness are subordinated to the Liens on the Collateral securing the Secured Obligations) on terms not materially less favorable (as reasonably determined by the Borrower Representative), taken as a whole, to the Lenders than those applicable to the Indebtedness (or Liens, as applicable) being refinanced, refunded or replaced, taken as a whole, (vi) except in the case of Refinancing Indebtedness with respect to clause (a) of this Section 6.01, as of the date of the incurrence of such Indebtedness and after giving effect thereto, no Event of Default exists, (vii) in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01, (A) such Indebtedness shall rank pari passu or junior in right of payment and shall be secured by all or portion of the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or shall be unsecured; provided that any such Indebtedness that ranks pari passu or junior with respect to the Collateral shall be subject to a Permitted Pari Passu Intercreditor Agreement or a Permitted Junior Intercreditor Agreement, as applicable, (B) if the Indebtedness being refinanced, refunded or replaced is secured, it is not secured by any assets other than the Collateral (but need not be secured by all such assets), (C) if the Indebtedness being refinanced, refunded or replaced is guaranteed, it shall not be guaranteed by any Person other than a Loan Party (but need not be guaranteed by all such Persons), (D) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, (E) any such Indebtedness that ranks pari passu with the 2021 Replacement Term Loans hereunder in right of payment and secured by all or a portion of the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any voluntary or mandatory prepayment in respect of the 2021 Replacement Term Loans (and any Additional Term Loans then subject to ratable repayment requirements), in each case as the applicable Borrower and the relevant lender may agree and (F) the Indebtedness being refinanced, refunded or replaced shall be repaid, defeased or satisfied and discharged, and all accrued interest, fees and premiums (if any) in connection therewith, shall be paid, in each case substantially concurrently with the issuance of such Refinancing Indebtedness and (viii) no Borrower nor any of its Restricted Subsidiaries may refinance any Indebtedness incurred by an Unrestricted Subsidiary pursuant to this clause;
(q) Indebtedness incurred to finance acquisitions permitted hereunder after the Closing Date, or Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition permitted hereunder after the Closing Date; provided that (i) before and after giving effect to such acquisition on a Pro Forma Basis, no Event of Default exists, (ii) after giving effect to such acquisition on a Pro Forma Basis, (A) if such Indebtedness is secured by a Lien on all or any portion of the Collateral that ranks pari passu with the Lien securing the Secured Obligations, the First Lien Leverage Ratio would not exceed the greater of (x) 2.00:1.00 and (y) the First Lien Leverage Ratio as of the last day of the most recently ended test period, it being understood and agreed that any indebtedness incurred under this clause (A), together with any permitted refinancing indebtedness (and successive permitted refinancing indebtedness) with respect thereto, shall at all times be included in the calculation of the First Lien Leverage Ratio unless such Indebtedness is separately justified under clause (B) below or (B) if such Indebtedness is secured by a Lien on all or any portion of the Collateral that ranks junior to the Lien securing the Secured Obligations or is unsecured, the Total Leverage Ratio would not exceed the greater of (x) 3.00:1.00 and (y) the Total Leverage Ratio as of the last day of the most recently ended Test Period, provided that (1) such Indebtedness does not mature or require any scheduled amortization or scheduled payment of principal or require any mandatory redemption, repurchase, repayment or sinking fund obligation (other than (A) payments as part of an “applicable high yield discount obligation” catch-up payment, (B) customary offers to repurchase in connection with any change of control, Disposition or casualty event and (C) customary acceleration rights after an event of default), in each case, prior to the date which is 91 days after the Latest Maturity Date as of the date of incurrence thereof, (2) the Weighted Average Life to Maturity of such Indebtedness shall be no shorter than the remaining Weighted Average Life to Maturity of the then-existing tranche(s) of Term Loans (without giving effect to any prepayments thereof), (3) one or more of the Borrowers shall be the direct borrower or issuer of such Indebtedness, and such Indebtedness shall not be guaranteed by any Person other than the Guarantors (but need not be guaranteed by all such Persons), (4) to the extent secured, such Indebtedness shall not be secured by any asset that is not Collateral (but need not be secured by all such assets), (5) any such Indebtedness described under clause (A) hereof shall be subject to a Permitted Pari Passu Intercreditor Agreement, (6) any such Ind
Appears in 2 contracts
Sources: Credit Agreement (Indivior PLC), Credit Agreement (Indivior PLC)
Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, createCreate, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect suffer to exist any Indebtedness, except:
(a) in the Obligationscase of the Borrower:
(i) Indebtedness in respect of Rate Contracts designed to hedge against fluctuations in interest rates, and not for speculative purposes, incurred in the ordinary course of business and consistent with prudent business practice or pursuant to Section 5.17; and
(ii) Indebtedness owed to a domestic Subsidiary Guarantor, which Indebtedness shall (A) be subordinated to the Obligations on terms reasonably satisfactory to the Agent and (B) if evidenced by a promissory note, such promissory note shall be pledged as security for the Obligations of the holder thereof under the Loan Documents to which such holder is a party and delivered to the Agent pursuant to the terms of the Collateral Documents;
(b) Senior Notes in the case of any Subsidiary, Indebtedness owed to the Borrower or to a domestic Subsidiary Guarantor; provided, that (i) if such Indebtedness is evidenced by a promissory note, such promissory note shall be pledged as security for the Obligations of the holder thereof under the Loan Documents to which such holder is a party and delivered to the Agent pursuant to the terms of the Collateral Documents and (ii) in the case of any such Indebtedness of a Subsidiary, if any, that is not a Credit Party, such Indebtedness shall be (A) on terms acceptable to the Agent and (B) in an aggregate amount for all such Subsidiaries not to exceed $1,250,000 at any time outstanding;
(c) in the case of the Borrower and the Subsidiary Guarantors, without duplication:
(i) Indebtedness under the Loan Documents;
(ii) Existing Indebtedness outstanding on the date hereof and listed on Schedule 4.5 and any refinancings, refundings, renewals or extensions of such Existing Indebtedness; provided, that the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and the direct and contingent obligors thereof shall not be changed, as a result of or in connection with such refinancing, refunding, renewal or extension; provided, further, that the terms relating to amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such extending, refunding or refinancing Indebtedness, and of any agreement entered into and of any instrument issued in connection therewith, are no less favorable to the Credit Parties or the Lenders than the terms of any agreement or instrument governing the Indebtedness being extended, refunded or refinanced;
(iii) Guarantees of the Borrower or any Subsidiary Guarantor in respect of Indebtedness otherwise permitted hereunder of the Borrower or any of the Subsidiary Guarantors;
(iv) Indebtedness in respect of Capital Leases, Synthetic Lease Obligations and purchase money obligations for fixed or capital assets within the limitations set forth in subsection 6.1(i); provided, however, that the aggregate amount of all such Indebtedness at any one time outstanding shall not exceed $1,250,000;
(v) Indebtedness of any Person that becomes a Subsidiary Guarantor after the date hereof in accordance with the terms of Section 6.3(i), which Indebtedness is existing at the time such Person becomes a Subsidiary of the Borrower (other than Indebtedness incurred in contemplation of such Person becoming a Subsidiary);
(vi) Attributable Indebtedness incurred in Permitted Sale-Leaseback Transactions in an aggregate amount not exceeding $2,500,000 at any time one time outstanding;
(vii) Indebtedness in an aggregate principal amount not to exceed $4,350,000,000;
2,500,000 at any time outstanding (c) Indebtedness no more than $500,000 of any Subsidiary of Borrower to Borrower or any other such Subsidiary or of Borrower to any of its Subsidiaries; provided that (i) all such Indebtedness, if owed to a Credit Party, shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral Document, (ii) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of a subordination agreement with respect to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness and (iii) in respect of any Indebtedness owing by a Subsidiary that is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d);
(d) Indebtedness incurred by Borrower or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) or from guaranties or letters of credit, surety bonds, performance bonds or similar obligations securing the performance of Borrower or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or any of its Subsidiaries;
(e) Indebtedness which may be deemed to exist pursuant to secured), incurred at a time when no payment Default or any guaranties, performance, surety, statutory, appeal or similar obligations incurred in the ordinary course Event of business;
(f) Indebtedness in respect of netting services, overdraft protections Default has occurred and otherwise in connection with deposit accounts;
(g) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees of and licensees to and of Borrower and its Subsidiaries;is continuing.
Appears in 2 contracts
Sources: Credit Agreement (Hemisphere Media Group, Inc.), Credit Agreement (Hemisphere Media Group, Inc.)
Indebtedness. No Credit Party shallThe Lead Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except:
(a) the ObligationsSecured Obligations (including any Additional Revolving Loans and/or Additional Revolving Commitments);
(b) Senior Notes Indebtedness of the Lead Borrower to any Restricted Subsidiary and/or of any Restricted Subsidiary to the Lead Borrower 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 a Loan Party, such Indebtedness shall be permitted as an aggregate principal amount Investment by Section 6.06; provided further that any Indebtedness of any Loan Party to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to exceed $4,350,000,000the Obligations of such Loan Party;
(c) Indebtedness of any Subsidiary of Borrower to Borrower or any other such Subsidiary or of Borrower to any of its Subsidiaries; provided that [Reserved];
(i) all such Indebtedness, if owed to a Credit Party, shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral Document, (ii) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of a subordination agreement with respect to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness and (iii) in respect of any Indebtedness owing by a Subsidiary that is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d);
(d) Indebtedness incurred by Borrower or any of its Subsidiaries arising from agreements any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date or any other purchase of assets or Capital Stock, and (ii) Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) or arising from guaranties or guaranties, letters of credit, bank guaranties, surety bonds, performance bonds or similar obligations instruments securing the performance of the Lead Borrower or any such Restricted Subsidiary pursuant to any such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or any of its Subsidiariesagreement;
(e) Indebtedness which may be deemed to exist of the Lead Borrower and/or any Restricted Subsidiary (i) pursuant to any guarantiestenders, performancestatutory obligations, bids, leases, governmental contracts, trade contracts, surety, statutorystay, appeal customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business, (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items and (iii) in respect of commercial and trade letters of credit;
(f) Indebtedness of the Lead Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with deposit accountsCash management and Deposit Accounts, including Banking Services Obligations and dealer incentive, supplier finance or similar programs;
(gi) guaranties by the Lead Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the obligations Lead Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of suppliersgoods or services or progress payments in connection with such goods and services and (iii) Indebtedness in respect of letters of credit, customersbankers’ acceptances, franchisees bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of and licensees to and of Borrower and its Subsidiariesbusiness;
Appears in 2 contracts
Sources: Abl Credit Agreement (Hayward Holdings, Inc.), Abl Credit Agreement (Hayward Holdings, Inc.)
Indebtedness. No Credit Loan Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except:
(a) the Obligations;
(b) Senior Notes in an aggregate principal amount not to exceed $4,350,000,000;
(c) Indebtedness of any Subsidiary of Borrower Guarantor to Borrower the Borrowers or to any other such Subsidiary Guarantor, or of Borrower the Borrowers to any of its SubsidiariesGuarantor; provided that provided, (i) all such Indebtedness, if owed to a Credit Party, shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral Document, (ii) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of a the applicable promissory notes or an intercompany subordination agreement with respect that in any such case, is reasonably satisfactory to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness Administrative Agent, and (iiiii) any payment by any such Guarantor under any guaranty of the Obligations shall result in respect a pro tanto reduction of the amount of any Indebtedness owing owed by a such Subsidiary that to the Borrowers or to any of its Subsidiaries for whose benefit such payment is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d)made;
(dc) Indebtedness incurred by Borrower the Borrowers or any of its their Subsidiaries arising from agreements providing for indemnification, deferral, credit portion or adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) other than earnouts), or from guaranties guarantees or letters of credit, surety bonds, bonds or performance bonds or similar obligations securing the performance of Borrower the Borrowers or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower the Borrowers or any of its their Subsidiaries;
(ed) Indebtedness which may be deemed to exist pursuant to any guarantiesguarantees, performance, surety, statutory, appeal or similar obligations incurred in the ordinary course of business;
(fe) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accounts;
(f) guarantees by the Borrowers of Indebtedness of a Guarantor or guarantees by a Subsidiary of the Borrowers of Indebtedness of the Borrowers or a Guarantor with respect, in each case, to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01;
(g) guaranties Indebtedness described in Schedule 6.01, but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the ordinary course agreements evidencing any such Indebtedness as the same are in effect on the date of business this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the obligations Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of suppliersan obligor that was not an obligor with respect to the Indebtedness being extended, customersrenewed or refinanced, franchisees (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced or (C) be incurred, created or assumed if any Default or Event of Default has occurred and licensees is continuing or would result therefrom;
(h) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an aggregate amount not to exceed at any time $10,000,000;
(i) Indebtedness in respect of Borrower earnouts in connection with Permitted Acquisitions;
(i) Indebtedness of a Person or Indebtedness attaching to assets of a Person that, in either case, becomes a Subsidiary or Indebtedness attaching to assets that are acquired by the Borrowers or any of their Subsidiaries after the Closing Date as the result of a Permitted Acquisition in an aggregate amount not to exceed at any time $20,000,000, provided that (x) 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 anticipation thereof and its Subsidiaries(y) such Indebtedness is not guaranteed in any respect by the Borrowers or any of their Subsidiaries (other than by any such person that so becomes a Subsidiary), and (ii) any refinancing, refunding, renewal or extension of any Indebtedness specified in subclause (i) above, provided, that (1) the principal amount of any such Indebtedness is not increased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or extension, (2) the direct and contingent obligors with respect to such Indebtedness are not changed and (3) such Indebtedness shall not be secured by any assets other than the assets securing the Indebtedness being renewed, extended or refinanced;
(k) other secured Indebtedness of the Borrowers or any of their Subsidiaries in an aggregate amount not to exceed at any time $10,000,000 in addition to Indebtedness described in Schedule 6.01;
(l) other unsecured Indebtedness of the Borrowers or any of their Subsidiaries owed to sellers in connection with Permitted Acquisitions; and
(m) other unsecured Indebtedness of the Borrowers; provided that (i) the Borrowers or any of their Subsidiaries shall be in compliance with the financial covenants set forth in Section 6.07 as of the last day of the Fiscal Quarter most recently ended (on a pro forma basis after giving effect to the incurrence of such Indebtedness) and (ii) the weighted average life to maturity of such Indebtedness shall be no shorter than the then remaining weighted average life to maturity of the Revolving Loans (assuming the maximum number of extensions permitted at the time of incurrence pursuant to Section 2.40), provided that this clause (m)(ii) shall not apply with respect to any issuance (or related series of issuances) of unsecured Indebtedness with a principal amount of less than $100,000,000.
Appears in 1 contract
Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except:
(a) the Obligations;
(b) Senior Notes in an aggregate principal amount not to exceed $4,350,000,000;
(c) Indebtedness of any Subsidiary of Borrower to Borrower or any other such Subsidiary or of Borrower to any of its Subsidiaries; provided that (i) all such Indebtedness, if owed to a Credit Party, shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral Document, (ii) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of a subordination agreement with respect to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness and (iii) in respect of any Indebtedness owing by a Subsidiary that is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d);
(d) Indebtedness incurred by Borrower or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) or from guaranties or letters of credit, surety bonds, performance bonds or similar obligations securing the performance of Borrower or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or any of its Subsidiaries;
(e) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal or similar obligations incurred in the ordinary course of business;
(f) Indebtedness in respect of Permitted Treasury Arrangements and all other netting services, overdraft protections and otherwise otherwise, treasury, depository, pooling and other cash management arrangements, including, in all cases, in connection with deposit accounts;
(g) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees of and licensees to and of Borrower and its Subsidiaries;
(h) guaranties by Borrower of Indebtedness of a Subsidiary of Borrower or guaranties by a Subsidiary of Borrower of Indebtedness of Borrower or any other such Subsidiary, in each case with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.1; provided that (i) if the Indebtedness that is being guarantied is unsecured and/or subordinated to the Obligations, the guaranty thereof shall be unsecured and/or subordinated to the Obligations to the same extent and (ii) in respect of any guaranty by a Credit Party of Indebtedness of a Subsidiary that is not a Credit Party, such guaranty is permitted as an Investment under Section 6.6(d);
(i) Indebtedness described in Schedule 6.1 (other than Indebtedness described in clauses (a) or (b) of this Section 6.1);
(j) Indebtedness of Borrower or its Subsidiaries with respect to Capital Leases or purchase money Indebtedness in an aggregate principal amount at any time outstanding not to exceed the greater of (x) $50,000,000 and (y) 1.00% of Consolidated Total Assets; provided, any such Indebtedness shall be secured only by the asset acquired in connection with the incurrence of such Indebtedness;
(k) Indebtedness of a Person or Indebtedness attaching to assets of a Person that, in either case, becomes a Subsidiary of Borrower or Indebtedness attaching to assets that are acquired by Borrower or any of its Subsidiaries, in each case after the Third Restatement Date; provided that (x) on a Pro Forma Basis (including, for the avoidance of doubt, Subordinated Indebtedness) after giving effect to the incurrence of such Indebtedness (including the use of proceeds thereof), the Leverage Ratio of Borrower shall be less than or equal to 5.25 to 1.00, as of the last day of the most recently ended Fiscal Quarter for which financial statements were required to have been delivered pursuant to Section 5.1(a) or (b), (y) 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 anticipation thereof and (z) such Indebtedness is not guaranteed in any respect by Borrower or any Subsidiary (other than by any such Person that so becomes a Subsidiary);
(l) Indebtedness representing the deferred purchase price of property (including Intellectual Property) or services, including earn-out obligations, purchase price adjustments, escrow arrangements or other arrangements representing deferred payments incurred in connection with the acquisition of equity or assets permitted or consented to hereunder;
(i) Indebtedness under any Hedge Agreement (and any guarantees thereof), (ii) Indebtedness under any Cash Management Agreement (and any guarantees thereof) and (iii) Indebtedness arising under any Currency Agreement or Interest Rate Agreement (and, in each case, any guarantees thereof), including any extensions thereof and such increases, if any, as shall result when the underlying obligations of such agreements are marked to market or increased to address accrued interest on the obligation relating to such agreement; provided, that, with respect to Indebtedness under Hedge Agreements, Interest Rate Agreements or Currency Agreements (or Guarantees thereof), such Indebtedness is entered into in the ordinary course of business and not for speculative purposes;
(n) Indebtedness in respect of performance and surety bonds and completion guarantees provided by Borrower or any of its Subsidiaries;
(o) Indebtedness of Borrower or any Subsidiary as an account party in respect of trade letters of credit;
(p) other Indebtedness (including, for the avoidance of doubt, Subordinated Indebtedness) of Borrower or any Guarantor in an aggregate principal amount not to exceed $750,000,000;
(q) other Indebtedness (including, for the avoidance of doubt, Subordinated Indebtedness) of Borrower or any Guarantor; provided that on a Pro Forma Basis after giving effect to the incurrence of such Indebtedness (including the use of proceeds thereof including, without limitation, after the date of incurrence or issuance of any such Indebtedness pursuant to any escrow arrangement, delayed draw, delayed closing or similar or analogous arrangement), (x) no Default or Event of Default has occurred and is continuing or would result therefrom and (y) the Leverage Ratio of Borrower and its Subsidiaries shall be less than or equal to 5.25 to 1.00, as of the last day of the most recently ended Fiscal Quarter for which financial statements were required to have been delivered pursuant to Section 5.1(a) or (b);
(r) provided that no Default or Event of Default has occurred and is continuing or would result therefrom, the incurrence or issuance by Borrower or any Subsidiary of Borrower of Indebtedness which serves to extend, replace, refund, renew, defease or refinance any Indebtedness incurred as permitted under clause (a), (b), (i), (j), (k), (p), (q), (r), (s), (v), (w) or (x) of this Section 6.1 or any Indebtedness issued to so extend, replace, refund, renew, defease or refinance such Indebtedness, or any Indebtedness, including additional Indebtedness, incurred to pay premiums (including tender premiums), defeasance costs and fees and expenses in connection therewith (the “Refinancing Indebtedness”); provided, however, that such Refinancing Indebtedness:
(1) has a final maturity date later than the date that is 91 days after the latest Term Loan Maturity Date, and has a weighted average life to maturity that is not less than the weighted average life to maturity of the Indebtedness being extended, replaced, renewed, defeased, refunded or refinanced,
(2) to the extent such Refinancing Indebtedness extends, replaces, refunds, renews, defeases or refinances (x) Indebtedness subordinated or pari passu to the Obligations, such Refinancing Indebtedness is subordinated or pari passu to the Obligations at least to the same extent (as determined in good faith by the board of directors of Borrower) as the Indebtedness being extended, replaced, renewed, defeased, refinanced or refunded or (y) Disqualified Equity Interests such Refinancing Indebtedness must be Disqualified Equity Interests,
(3) shall have direct and contingent obligors that are the same as (or, in the case of contingent obligors, no more expansive than) the direct and contingent obligors, respectively, of the refinanced Indebtedness,
(4) shall not be secured by any assets that were not required to be used to secure the Indebtedness being extended, replaced, renewed, defeased, refunded or refinanced, and
(5) to the extent such Refinancing Indebtedness extends, replaces, refunds, renews, defeases or refinances Indebtedness incurred as permitted under clause (a) of this Section 6.1; the covenants, events of default, guarantees, collateral and other terms of such Refinancing Indebtedness (other than interest rate and redemption premiums), taken as a whole, are not more restrictive to Borrower or any of its Subsidiaries than those in this Agreement, as determined by the Borrower in good faith;
(s) Permitted Secured Notes;
(t) Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such Person) providing workers’ compensation, health, death, disability or other employee benefits or property, casualty or liability insurance or self-insurance, or other Indebtedness regarding workers’ compensation claims pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business;
(u) Indebtedness of Borrower or any of its Subsidiaries consisting of (x) the financing of insurance premiums or (y) take-or-pay obligations contained in supply arrangements, in each case, incurred in the ordinary course of business;
(v) Indebtedness of Subsidiaries of Borrower (other than Biovail Insurance and any other such Subsidiary that is not permitted by Applicable Law to guaranty the Obligations) that are not Credit Parties and that are organized under the laws of any jurisdiction other than the United States of America consisting of working capital credit facilities in an aggregate principal amount at any time outstanding under this clause (v) not to exceed the greatest of (i) 2.5% of the consolidated total revenues for the four Fiscal Quarter period most recently ended, (ii) 2.5% of the consolidated total assets, as determined in accordance with GAAP, as of the applicable date of determination, in each case of subclause (i) and (ii), of all Subsidiaries of Borrower (other than Biovail Insurance and any other such Subsidiary that is not permitted by Applicable Law to guaranty the Obligations) that are not Credit Parties, and (iii) $40,000,000;
(w) the Bausch & Lomb Unsecured Debt; and
(x) the Sun Unsecured Debt.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Valeant Pharmaceuticals International, Inc.)
Indebtedness. No Credit Party shallThe Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except:
(a) the ObligationsSecured Obligations (including any Loans and/or Commitments);
(b) Senior Notes in an aggregate principal amount Indebtedness of the Borrower to any Restricted Subsidiary and/or of any Restricted Subsidiary to the Borrower or any other Restricted Subsidiary; provided that any Indebtedness of any Loan Party to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to exceed $4,350,000,000the Obligations of such Loan Party;
(c) Indebtedness of any Subsidiary of Borrower to Borrower or any other such Subsidiary or of Borrower to any of its Subsidiaries; provided that [reserved];
(i) all such Indebtedness, if owed to a Credit Party, shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral Document, (ii) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of a subordination agreement with respect to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness and (iii) in respect of any Indebtedness owing by a Subsidiary that is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d);
(d) Indebtedness incurred by Borrower or any of its Subsidiaries arising from agreements any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Third Amendment Effective Date or any other purchase of assets or Capital Stock and (ii) Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) or arising from guaranties or guaranties, letters of credit, bank guaranties, surety bonds, performance bonds or similar obligations instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or any of its Subsidiariesagreement;
(e) Indebtedness which may be deemed to exist of the Borrower and/or any Restricted Subsidiary (i) pursuant to any guarantiestenders, performancestatutory obligations, bids, leases, governmental contracts, trade contracts, surety, statutorystay, appeal customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business, (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of, or in lieu of, any of the foregoing items and (iii) in respect of commercial and trade letters of credit;
(f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with deposit accountsCash management and Deposit Accounts, including Banking Services Obligations and dealer incentive, supplier finance or similar programs;
(gi) guaranties by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and 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 suppliersthe Borrower and/or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, customersor pursuant to commitments existing, franchisees on the Third Amendment Effective Date; provided that (i) any such item of Indebtedness with an aggregate outstanding principal amount on the Third Amendment Effective Date in excess of $5,000,000 shall be described on Schedule 6.01, and licensees (ii) ordinary course capital leases, purchase money indebtedness, equipment financings, performance bonds, bank guarantees, letters of credit, guarantees and surety bonds existing as of the Third Amendment Effective Date need not be described on Schedule 6.01;
(j) Indebtedness of Restricted Subsidiaries that are not Loan Parties in an aggregate outstanding principal amount of such Indebtedness not to exceed the greater of $170,000,000 and 50.0% of Consolidated Adjusted EBITDA minus amounts under this Section 6.01(j) reallocated to Section 6.01(u);
(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;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to purchase money Indebtedness incurred prior to or within two hundred seventy (270) days of the acquisition, lease, completion of construction, repair of, replacement, improvement to or installation of assets (or Capital Stock of any Person owning any such assets) in an aggregate outstanding principal amount not to exceed the greater of $120,000,000 and 35.0% of Consolidated Adjusted EBITDA and (ii) Indebtedness of the Borrower and/or any Restricted Subsidiaries with respect to Capital Leases (including Capital Lease obligations or rental payments in respect of any property Disposed of pursuant to any Sale and Lease-Back Transactions permitted pursuant to Section 6.07);
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed, in each case, in connection with an acquisition or Investment permitted hereunder after the Third Amendment Effective Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation thereof, (ii) no Event of Default exists or would result after giving pro forma effect to such acquisition or similar Investment and (iii) solely to the extent the principal amount thereof acquired in such acquisition or Investment exceeds the greater of $115.0 million and an amount equal to 35.0% of Consolidated Adjusted EBITDA, the Total Leverage Ratio does not exceed the greater of 6.00:1.00 and the Total Leverage Ratio as of the then most recently completed fiscal quarter, calculated on a Pro Forma Basis;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of any Parent Company or any current or former director, officer, employee, member of management, manager or consultant of any Parent Company, the Borrower or any subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of any Parent Company permitted by Section 6.04(a);
(p) the Borrower and its SubsidiariesRestricted Subsidiaries may become and remain liable for any Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (j), (m), (n), (q), (r), (u), (w), (x), (z) and (ii) and this clause (p) 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 of existing Refinancing Indebtedness under this clause (p); 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 commitment, underwriting, arrangement and similar fees, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (1) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this Section 6.01 (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) (x) other than in the case of Refinancing Indebtedness with respect to clauses (a), (i), (j), (m), (n), (r), (u), (x) and (z) of this Section 6.01 (and other than customary bridge loans with a maturity date of not longer than one (1) year which are converted into, exchanged for, extended to or otherwise refinanced with Indebtedness subject to the requirements of this clause (ii)), and subject to the Permitted Earlier Maturity Indebtedness Exception, (A) such Indebtedness has a final maturity on or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (1) ninety-one (91) days after the Latest Maturity Date and (2) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) other than with respect to revolving Indebtedness, and subject to the Permitted Earlier Maturity Indebtedness Exception, 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 (other than to the extent resulting from a change in the final maturity date permitted under clause (A)(1) above) and (y) in the case of Refinancing Indebtedness incurred with respect to Indebtedness permitted under clause (a) of this Section 6.01, such Indebtedness shall satisfy the requirements of Section 9.02(c)(i)(B) or Section 9.02(c)(ii)(B), as applicable;
(iii) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (j), (m) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause and after the incurrence thereof, shall constitute amounts outstanding under such clause;
(iv) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 (it being understood that Holdings may not be the primary obligor of the applicable Refinancing Indebtedness if Holdings was not the primary obligor on the relevant refinanced Indebtedness), (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), (B) such 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, and (C) if the Indebtedness being refinanced, refunded or replaced was originally contractually subordinated to the Obligations in right of payment (or the Liens securing such Indebtedness were originally contractually subordinated to the Liens on the Collateral securing the Secured Obligations), such Refinancing Indebtedness is contractually subordinated to the Obligations in right of payment (or the Refinancing Liens securing such Indebtedness are subordinated to the Liens on the Collateral securing the Secured Obligations and subject to an Acceptable Intercreditor Agreement), except to the extent the refinancing, refunding or replacement thereof constitutes a Restricted Debt Payment permitted under Section 6.04(b) (other than Section 6.04(b)(i)) or does not constitute a Restricted Debt Payment;
(v) no Event of Default exists or would result therefrom;
(vi) in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder and shall be subject to an Acceptable Intercreditor Agreement, or is unsecured, (B) if the Indebtedness being refinanced, refunded or replaced is secured, it is not secured by any assets other than the Collateral, (C) if the Indebtedness being refinanced, refunded or replaced is Guaranteed, it shall not be Guaranteed by any Person other than a Loan Party and (D) such Indebtedness shall satisfy the requirements of Section 9.02(c)(i)(I) or Section 9.02(c)(ii)(I), as applicable; and
(vii) any such Refinancing Indebtedness that is pari passu with the First Priority Secured Obligations hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the First Priority Secured Obligations may participate, with respect to voluntary prepayments on a pro rata basis, a less than pro rata basis or greater than pro rata basis, and with respect to mandatory Prepayments, on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis), in each case, in respect of the Initial Term Loans (and any other Term Loans then subject to ratable repayment requirements), in each case as the Borrower and the relevant lender may agree;
(q) Indebtedness incurred to finance, or assumed in connection with, any acquisition or Investment permitted hereunder after the Third Amendment Effective Date; provided, that (i) before and after giving effect to such acquisition or Investment on a Pro Forma Basis, no Event of Default exists or would result therefrom, (ii) after giving effect to such acquisition or Investment on a Pro Forma Basis (without “netting” the Cash proceeds of such Indebtedness), (A) if such Indebtedness is secured by a Lien on the Collateral that is pari passu with the Lien securing the First Priority Secured Obligations and pari passu in right of payment with the Obligations, (1) such Indebtedness shall be subject to an Acceptable Intercreditor Agreement, (2) the First Lien Leverage Ratio does not exceed the greater of (x) 3.50:1.00 and (y) the First Lien Leverage Ratio as of the last day of the most recently ended Test Period, and (3) any such Indebtedness consisting of syndicated first lien term loans (other than “bridge loans”) shall be subject to clause (v) of the proviso to Section 2.22(a) (including with respect to exceptions, limitations and thresholds thereunder), (B) if such Indebtedness is secured by a Lien on the Collateral that is junior to the Lien securing the First Priority Secured Obligations, (1) such Indebtedness shall be subject to an Acceptable Intercreditor Agreement, and (2) the Secured Leverage Ratio would not exceed the greater of
Appears in 1 contract
Sources: First Lien Credit Agreement (Hayward Holdings, Inc.)
Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except:
(a) the Obligations;
(b) Senior Notes in an aggregate principal amount not to exceed $4,350,000,000;
(c) Indebtedness of any Guarantor Subsidiary of Borrower to Borrower Company or to any other such Subsidiary Guarantor Subsidiary, or of Borrower Company to any of its SubsidiariesGuarantor Subsidiary; provided that provided, (i) all such Indebtedness, if owed to a Credit Party, Indebtedness shall be evidenced by the Intercompany Note or another promissory note and Subordination, and shall be subject to a First Priority Lien pursuant to the applicable Collateral DocumentPledge and Security Agreement, (ii) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment Payment in full Full of the all Obligations pursuant to the terms of a subordination agreement with respect to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties Intercompany Note and such Subsidiaries party to such Indebtedness Subordination, and (iii) any payment by any such Guarantor Subsidiary under any guaranty of the Obligations shall result in respect a pro tanto reduction of the amount of any Indebtedness owing owed by a such Guarantor Subsidiary that to Company or to any of its Subsidiaries for whose benefit such payment is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d)made;
(c) [Reserved]
(d) Indebtedness incurred by Borrower Holdings or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) customary indemnification or from customary guaranties or letters of credit, surety bonds, bonds or performance bonds or similar obligations securing the performance of Borrower Company or any such Subsidiary pursuant to such agreements, agreements in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower Holdings or any of its Subsidiaries;
(e) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal or similar Subsidiaries and customary and reasonable indemnity obligations incurred in the ordinary course of business;
(f) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accounts;
(g) guaranties in entered into the ordinary course of business of a Credit Party pursuant to the obligations terms of supplierssuch Credit Party’s bylaws, customers, franchisees of and licensees to and of Borrower and its Subsidiariesoperating agreement or other similar constituent documents;
Appears in 1 contract
Sources: Credit and Guaranty Agreement (ONE Group Hospitality, Inc.)
Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except:
(a) the Obligations;
(b) Senior Notes in an aggregate principal amount not to exceed $4,350,000,000;
(c) Indebtedness of any Guarantor Subsidiary of Borrower to Borrower any Company or to any other such Subsidiary Guarantor Subsidiary, or of Borrower any Company to any of its SubsidiariesGuarantor Subsidiary; provided that provided, (i) all such Indebtedness, if owed to a Credit Party, shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral Document, (ii) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of a the applicable promissory notes or an intercompany subordination agreement with respect that in any such case, is reasonably satisfactory to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties Administrative Agent and such Subsidiaries party to such Indebtedness Requisite Lenders, and (iiiii) any payment by any such Guarantor Subsidiary under any guaranty of the Obligations shall result in respect a pro rata reduction of the amount of any Indebtedness owing owed by a such Subsidiary that to the applicable Company or to any of its Subsidiaries for whose benefit such payment is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d)made;
(dc) Indebtedness incurred by Borrower Holdings or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) or from guaranties or letters of credit, surety bonds, bonds or performance bonds or similar obligations securing the performance of Borrower any Company or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower Holdings or any of its Subsidiaries;
(ed) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, statutory or appeal bonds or similar obligations incurred in the ordinary course of business;
(fe) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accountsDeposit Accounts;
(f) Indebtedness constituting accounts payable incurred in the ordinary course of business and not more than 60 days past due (excluding, for the avoidance of doubt, any inventory floorplan financing);
(g) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees of and licensees to and of Borrower Holdings and its Subsidiaries;
(h) guaranties by any Company of Indebtedness of a Guarantor Subsidiary or guaranties by a Subsidiary of any Company of Indebtedness of such Company or a Guarantor Subsidiary with respect, in each case, to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.1; provided, that if the Indebtedness that is being guarantied is unsecured and/or subordinated to the Obligations, the guaranty shall also be unsecured and/or subordinated to the Obligations;
(i) Indebtedness described in Schedule 6.1, but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement, and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(j) Indebtedness in an aggregate amount not to exceed $1,200,000 at any time outstanding with respect to (A) Capital Leases and (B) purchase money Indebtedness (including any such Indebtedness acquired in connection with a Permitted Acquisition); provided, in the case of clause (A), that any such Indebtedness shall be secured only by the asset subject to such Capital Lease, and, in the case of clause (B), that any such Indebtedness shall (1) be secured only by the asset acquired in connection with the incurrence of such Indebtedness and (2) constitute not less than 50% of the aggregate consideration paid with respect to such asset;
(k) Indebtedness constituting Approved Subordinated Debt so long as (i) such Indebtedness is subject to subordination terms in form and substance satisfactory to Administrative Agent and Requisite Lenders and/or is structurally subordinated to the liabilities of the Companies in a manner satisfactory to Administrative Agent and Requisite Lenders and (ii) the aggregate outstanding principal amount of all such Indebtedness, at the time any such Indebtedness is incurred, does not exceed the Approved Subordinated Debt Cap after giving effect to such incurrence;
(l) Indebtedness constituting an Approved Floorplan Financing so long as (i) such Indebtedness is subject to the Intercreditor Agreement and (ii) the aggregate outstanding principal amount of all such Indebtedness does not exceed $350,000,000 at any time, unless otherwise consented to by Administrative Agent and Requisite Lenders;
(m) Indebtedness consisting of obligations under the TCF Agreement so long as the aggregate outstanding principal amount of all such Indebtedness does not exceed $500,000 at any time outstanding;
(n) solely during the period commencing on the Eighth Amendment Effective Date and ending upon the earlier of (x) the consummation of the Pompano Beach Acquisition and (y) the termination, waiver, or release of 651’s obligations under the Pompano Beach Acquisition Agreement, Indebtedness consisting of 651’s unpaid obligations to pay the purchase price for the Pompano Beach Acquisition pursuant to the Pompano Beach Acquisition Agreement as in effect on the Eighth Amendment Effective Date;
(o) solely during the period commencing on the Tenth Amendment Effective Date and ending upon the earlier of (x) the consummation of the Slalom Acquisition and (y) the termination, waiver, or release of SAO’s obligations under the Slalom Acquisition Agreement, Indebtedness consisting of SAO’s unpaid obligations to pay the purchase price for the Slalom Acquisition pursuant to the Slalom Acquisition Agreement as in effect on the Tenth Amendment Effective Date; and
(p) solely during the period commencing on the Thirteenth Amendment Effective Date and ending upon the earlier of (x) the consummation of the Caribee Acquisition and (y) the termination, waiver, or release of SFAO’s obligations under the Caribee Acquisition Agreement, Indebtedness consisting of SFAO’s unpaid obligations to pay the purchase price for the Caribee Acquisition pursuant to the Caribee Acquisition Agreement as in effect on the Thirteenth Amendment Effective Date.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (OneWater Marine Inc.)
Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except:
(a) the Obligations;
(b) Senior Notes in an aggregate principal amount not to exceed $4,350,000,000;
(c) Indebtedness of (i) any Subsidiary of Domestic Guarantor or U.S. Borrower owed to any other Domestic Guarantor or U.S. Borrower, (ii) the Euro Borrowers owed to any other Borrower or any other such Subsidiary or of Borrower Guarantor, (iii) any Foreign Guarantor owed to any other Borrower or any Guarantor; provided, that in the case of its Subsidiaries; provided that (i), (ii) and (iii) (1) all such Indebtedness, if owed to a Credit Party, Indebtedness shall be evidenced by the Intercompany Note or another promissory note and Notes, which shall be subject to a First Priority Lien pursuant to the applicable Pledge and Security Agreement or another Collateral Document, with respect to the Intercompany Note evidencing debt owed to a Domestic Subsidiary or U.S. Borrower, securing the Domestic Loans and the European Loans, and with respect to the Intercompany Note evidencing the debt owed to a Foreign Subsidiary or a Euro Borrower, securing the European Loans only (iisubject to Section 7.13) and (2) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of a subordination agreement with respect to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness and Intercompany Note;
(iiic) in respect of any Indebtedness owing by a Subsidiary that is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d)[reserved];
(d) [reserved];
(e) Indebtedness incurred by Borrower Holdings or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of holdbacks, working capital or other purchase price adjustments, earn-outs, non-compete agreements, deferred compensation or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) obligations, or from guaranties or letters of credit, surety bonds, bonds or performance bonds or similar obligations securing the performance of Borrower Borrowers or any such Subsidiary pursuant to such agreements, in connection with the Acquisition, Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower Holdings or any of its Subsidiaries;
(ef) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal bonds or similar obligations incurred in the ordinary course of business;
(fg) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accounts;
(gh) guaranties in the ordinary course of business of the obligations of to suppliers, customers, franchisees of and licensees to and of Borrower Holdings and its Subsidiaries;
(i) guaranties (i) by U.S. Borrower or a Domestic Guarantor of Indebtedness of U.S. Borrower, a Domestic Guarantor, Euro Borrower or Foreign Guarantor, and (ii) by either Euro Borrower or Foreign Guarantor of Indebtedness of the other Euro Borrower or a Foreign Guarantor, with respect, in each case, to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.1; provided, that in the case of (i) and (ii) that if the Indebtedness that is being guarantied is unsecured and/or subordinated to the Obligations, the guaranty shall also be unsecured and/or subordinated to the Obligations;
(j) Indebtedness described in Schedule 6.1, but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being renewed, refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being renewed, refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(k) Indebtedness with respect to Capital Leases in an aggregate amount not to exceed at any time $20,000,000;
(l) purchase money Indebtedness in an aggregate amount not to exceed at any time $20,000,000; provided, any such Indebtedness (i) shall be secured only by the asset acquired in connection with the incurrence of such Indebtedness, and (ii) shall constitute not less than 90% of the aggregate consideration paid with respect to such asset;
(i) Indebtedness of a Person or Indebtedness attaching to assets of a Person that, in either case, becomes a Subsidiary of a Borrower or Indebtedness attaching to assets that are acquired by Holdings or any of its Subsidiaries, in each case after the Closing Date as the result of a Permitted Acquisition, in an aggregate amount not to exceed $50,000,000 at any one time outstanding, provided that (x) 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 anticipation thereof and (y) such Indebtedness is not guaranteed in any respect by Holdings or any Subsidiary (other than by any such Person that so becomes a Subsidiary of such Borrower), and (ii) any refinancing, refunding, renewal or extension of any Indebtedness specified in subclause (i) above, provided, that (1) the principal amount of any such Indebtedness is not increased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or extension, (2) the direct and contingent obligors with respect to such Indebtedness are not changed and (3) such Indebtedness shall not be secured by any assets other than the assets securing the Indebtedness being renewed, extended or refinanced;
(n) other Indebtedness of Holdings and its Subsidiaries in an aggregate amount not to exceed at any time $25,000,000; provided that such amount shall only be secured to the extent permitted under Section 6.2(x);
(o) Indebtedness owed to any Person providing property, casualty, business interruption or liability insurance to Borrowers or any Subsidiary of Borrowers, so long as such Indebtedness shall not be in excess of the amount of the unpaid cost of, and shall be incurred only to defer the cost of, such insurance for the annual period in which such Indebtedness is incurred and such Indebtedness shall be outstanding only during such year;
(p) unsecured Indebtedness of Holdings owing to any then existing or former director, officer or employee of Holdings, Holdings or its Subsidiaries or their respective assigns, estates, heirs or their current or former spouses for the repurchase, redemption or other acquisition or retirement for value of any equity interest or equity equivalent of Holdings or Solera Holdings, Inc. held by them to the extent such transaction was permitted under Section 6.5(h);
(q) [reserved];
(r) accretion or amortization of original issue discount and accretion of interest paid in kind, in each case in respect of Indebtedness otherwise permitted by this Section 6.1;
(s) unsecured Indebtedness incurred to fund any Permitted Acquisition or permitted Joint Venture; provided that (A) such Indebtedness shall have no amortization prior to the Term Loan Maturity Date, (B) the final maturity of such Indebtedness shall be at least 6 months following the Term Loan Maturity Date and (C) if immediately after giving effect to the incurrence of such Indebtedness and such Permitted Acquisition or Joint Venture, the Leverage Ratio would exceed 4.50:1.00, the Leverage Ratio immediately prior to the time of such purchase or acquisition shall not be less than the pro forma Leverage Ratio immediately after giving effect to such purchase or acquisition, it being understood that in each case the pro forma Leverage Ratio shall be determined on the basis of the financial statements most recently delivered to the Administrative Agent and the Lenders as though such incurrence of Indebtedness and such purchase or other acquisition had been consummated as of the first day of the fiscal period covered thereby;
(t) deemed Indebtedness pursuant to FASB 133 or 150;
(u) obligations under any Interest Rate Agreement and any Currency Agreement; and
(v) other Indebtedness of Holdings and its Subsidiaries, which is unsecured and subordinated to the Obligations in a manner reasonably satisfactory to Administrative Agent, consistent with subordination terms under which unsecured indebtedness is subordinated in prior transactions of this kind by comparable portfolio companies of the Sponsor; provided that the pro forma Leverage Ratio after giving effect to the incurrence of such Indebtedness is less than 4.50:1.00.
Appears in 1 contract
Sources: First Lien Credit and Guaranty Agreement (Solera Holdings LLC)
Indebtedness. No Credit Party shallThe Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except:
(a) the ObligationsObligations (including any Additional Term Loans and any Additional Revolving Loans);
(b) Senior Notes in an aggregate principal amount Indebtedness of the Borrower to any Restricted Subsidiary and/or Indebtedness of any Restricted Subsidiary to Holdings, the Borrower and/or any other Restricted Subsidiary; provided that any Indebtedness of any Loan Party owing to any Restricted Subsidiary that is not a Loan Party must be unsecured and expressly subordinated to exceed $4,350,000,000the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent;
(c) Indebtedness of any Subsidiary of Borrower to Borrower or any other such Subsidiary or of Borrower to any of its Subsidiaries; provided that (i) all such Indebtedness, if owed to a Credit Party, shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral Document, (ii) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of a subordination agreement with respect to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness and (iii) in respect of any Indebtedness owing by a Subsidiary that is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d)[Reserved];
(d) Indebtedness incurred by Borrower or any of its Subsidiaries arising from agreements any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date or any other purchase of assets or Capital Stock permitted hereunder, and Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) or arising from guaranties or guaranties, letters of credit, bank guaranties, surety bonds, performance bonds or similar obligations instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or any of its Subsidiariesagreement;
(e) Indebtedness which may be deemed to exist of the Borrower and/or any Restricted Subsidiary (i) pursuant to any guarantiestenders, performancestatutory obligations, bids, leases, governmental contracts, trade contracts, surety, statutorystay, appeal customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
(f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including Cash Management 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, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods 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;
(fh) Guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness in 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 a Restricted Subsidiary may not, pursuant to this clause (h), Guarantee any Indebtedness of netting services, overdraft protections and otherwise in connection with deposit accountsa Loan Party that such Restricted Subsidiary would not have been permitted to incur under another clause of this Section 6.01;
(gi) guaranties Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and to the extent such Indebtedness is in excess of $5,000,000, described on Schedule 6.01;
(j) Indebtedness of Restricted Subsidiaries that are not Loan Parties (i) in an aggregate outstanding principal amount not to exceed the greater of $90,000,000 and 45% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period and (ii) to fund working capital requirements in an aggregate outstanding principal amount not to exceed the greater of $20,000,000 and 10% 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 supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the obligations 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 suppliers$60,000,000 and 30% 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 an acquisition permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired, customers(B) was not created or incurred in anticipation thereof and (C) such Indebtedness is only the obligation of the Person and/or Person’s Subsidiaries that are acquired or that acquired the relevant assets and (ii) the aggregate outstanding principal amount of indebtedness incurred in reliance on this Section 6.01(n) by Restricted Subsidiaries that are not Loan Parties shall not at any time exceed the greater of $60,000,000 and 30% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of any Parent Company or any current or former director, franchisees officer, employee, member of and licensees management, manager or consultant of any Parent Company, the Borrower or any Subsidiary (or their respective Immediate Family Members) to and finance the purchase or redemption of Capital Stock of any Parent Company permitted by Section 6.04(a);
(p) the Borrower and its SubsidiariesRestricted Subsidiaries may become and remain liable for any Indebtedness refinancing, refunding or replacing any Indebtedness permitted under (a), (i), (j), (m), (n), (q), (r), (u), (w), (x) and (y) 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:
(1) except to the extent otherwise permitted hereunder (including utilization of any other available baskets or incurrence based amounts) the principal amount of such Refinancing Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest and premiums (including tender premiums) thereon plus underwriting discounts and other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and (B) an amount equal to any existing commitments unutilized thereunder and (2) if such additional Indebtedness is secured, the Lien securing such Refinancing Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) in the case of Refinancing Indebtedness other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n) and/or (u) of this Section 6.01, such Refinancing Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception, other than with respect to revolving Indebtedness, a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced,
(iii) the terms of any Refinancing Indebtedness with an original principal amount in excess of the Threshold Amount (excluding pricing, fees, premiums, rate floors, optional prepayment or redemption terms (and, if applicable, subordination terms) and, with respect to Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01, security), are not, taken as a whole (as reasonably determined by the Borrower), more favorable to the lenders providing such Indebtedness than those applicable to the Indebtedness being refinanced, refunded or replaced (other than (x) any covenants or any other provisions applicable only to periods after the Latest Maturity Date as of such date or (y) any covenants or provisions which are market terms and conditions (taken as a whole) at the time of incurrence or issuance for the applicable type of Indebtedness) (as reasonably determined by the Borrower)),
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (j), (m), (n) (solely as it relates to Indebtedness incurred by any Restricted Subsidiary that is not a Loan Party), (q) (solely as it relates to Indebtedness incurred under Section (q)(ii)(x) or by any Restricted Subsidiary that is not a Loan Party), (r), (u), (w) (solely as it relates to Indebtedness incurred under Section (w)(i)(x) or by any Restricted Subsidiary that is not a Loan Party), (x) and (y) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on (and such Refinancing Indebtedness shall constitute utilization of amounts set forth in) the applicable clause of this Section 6.01,
(v) (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), (B) such Refinancing Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01 (provided that Holdings may not be a primary obligor in respect of the applicable Refinancing Indebtedness if Holdings was not a primary obligor in respect of the relevant refinanced Indebtedness), (C) if the Indebtedness being refinanced, refunded or replaced was originally contractually subordinated to the Obligations in right of payment (or the Liens securing such Indebtedness were originally contractually subordinated to the Liens on all or a portion of the Collateral securing the Initial Term Loans), such Refinancing Indebtedness is contractually subordinated to the Obligations in right of payment (or the Liens securing such Refinancing Indebtedness are subordinated to the Liens on the relevant Collateral securing the Initial Term Loans) on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Indebtedness (or Liens, as applicable) being refinanced, refunded or replaced, taken as a whole, and (D) as of the date of the incurrence of any such Refinancing Indebtedness and after giving effect thereto, no Event of Default exists,
(vi) in the case of Replacement Debt, (A) such Refinancing Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Refinancing Indebtedness that is pari passu or junior with respect to the Collateral or that is junior in right of payment shall be subject to an Acceptable Intercreditor Agreement, (B) if the Indebtedness being refinanced, refunded or replaced is secured, it is not secured by any assets other than the Collateral, (C) if the Indebtedness being refinanced, refunded or replaced is Guaranteed, it shall not be Guaranteed by any Person other than one or more Loan Parties and (D) such Refinancing Indebtedness is incurred under (and pursuant to) documentation other than this Agreement; it being understood and agreed that any such Refinancing Indebtedness may participate (x) in any voluntary prepayment of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayment of Term Loans as set forth in Section 2.11(b)(vi), and
(vii) in the case of Refinancing Indebtedness with respect to intercompany Indebtedness permitted under Section 6.01(i), such Refinancing Indebtedness also constitutes intercompany Indebtedness;
(q) Indebtedness incurred to finance any acquisition or similar Investment permitted hereunder after the Closing Date; provided that:
(i) before and after giving effect to such acquisition or similar Investment on a Pro Forma Basis, no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists,
(ii) the aggregate outstanding principal amount of such Indebtedness does not exceed (x) the Shared Fixed Amount plus (y) additional unlimited amounts; provided, that after giving effect to such acquisition on a Pro Forma Basis (in each case, without
Appears in 1 contract
Indebtedness. No Credit Party shallHoldings and the Borrowers shall not, nor and shall it not permit any of its their respective Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to, any Indebtedness or preferred stock, except that each of Holdings and the Borrower Entities may create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any IndebtednessIndebtedness or preferred stock, exceptas follows:
(ai) Each of the ObligationsLoan Parties may become and remain liable with respect to its respective Obligations pursuant to the terms of this Agreement and the other Loan Documents;
(ii) The Borrowers may become and remain liable with respect to Indebtedness to any of the Subsidiary Guarantors and each of the Subsidiary Guarantors may become and remain liable with respect to Indebtedness owed to any other Subsidiary Guarantor; provided that, in each case, (a) no Default or Event of Default has occurred and is continuing at the time of the incurrence thereof or would result therefrom, (b) Senior Notes in an aggregate principal amount not all such intercompany Indebtedness shall be evidenced by promissory notes which shall have been pledged to exceed $4,350,000,000;
the Collateral Agent pursuant to the Collateral Documents, (c) all such intercompany Indebtedness of owed by any Subsidiary of Borrower to Borrower or any other such Subsidiary or of Borrower to any of its Subsidiaries; provided that (i) all such Indebtedness, if owed to a Credit Party, shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral Document, (ii) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Party respective Subsidiaries shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of a the applicable promissory notes or an intercompany subordination agreement that in any such case, are reasonably satisfactory to the Administrative Agent and (d) any payment by any Subsidiary under any Guaranty shall result in a pro tanto reduction of the amount of any intercompany Indebtedness owed by such Subsidiary to any such Borrower or to any of its Subsidiaries for whose benefit such payment is made;
(iii) The Borrower Entities may become and remain liable with respect to such Indebtedness substantially under performance, surety, appeal or indemnity bonds required by Governmental Authorities in connections with the form development (if any) of Exhibit J-2 among the Real Property Collateral;
(iv) Holdings, the Borrowers and the Subsidiary Guarantors may become and remain liable with respect to Indebtedness under the Second Lien Credit Parties and such Subsidiaries party Agreement in an aggregate principal amount not to such Indebtedness and (iii) in respect exceed $195,000,000 less the amount of any Indebtedness owing by permanent repayments or prepayments thereof (other than to the extent constituting a Subsidiary that is not Refinancing with a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under replacement second lien credit facility in accordance with the proviso to Section 6.6(dterms of the Intercreditor Agreement);
(dv) Indebtedness incurred by Borrower or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted AcquisitionLoan Parties (excluding Shareholder Loans) or from guaranties or letters of creditprovided that the aggregate principal amount for all such Indebtedness at any one time outstanding shall not exceed, surety bondson an aggregate basis among Loan Parties, performance bonds or similar obligations securing the performance of Borrower or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or any of its Subsidiaries$500,000;
(evi) Indebtedness which may be deemed (including, without limitation, Capital Leases) secured by Liens permitted by Section 6.2.A(iv) in an aggregate principal amount not to exist pursuant to exceed, on an aggregate basis among Loan Parties, $1,000,000 at any guaranties, performance, surety, statutory, appeal or similar obligations incurred in the ordinary course of businesstime outstanding;
(fvii) Holdings may remain liable with respect to the existing Shareholder Loans described on Schedule 6.1(vii); and
(viii) Indebtedness of Holdings with respect to Shareholder Loans made after the Effective Date in respect of netting services, overdraft protections and otherwise in connection with deposit accounts;
(g) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees of and licensees aggregate principal amount not to and of Borrower and its Subsidiaries;exceed $5,000,000.
Appears in 1 contract
Sources: Credit Agreement (FX Real Estate & Entertainment Inc.)
Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except:
(a) the Obligations, including any Indebtedness under any Hedge Agreement with any Lender Counterparty;
(b) Senior Notes in an aggregate principal amount not to exceed $4,350,000,000;
(c) Indebtedness of any Guarantor Subsidiary of Borrower to Borrower Company or to any other such Subsidiary Guarantor Subsidiary, or of Borrower Company to any of its SubsidiariesGuarantor Subsidiary; provided that provided, -------- (i) all such Indebtedness, if owed to a Credit Party, Indebtedness shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien made pursuant to the applicable Collateral Documentan Intercompany Loan Agreement, (ii) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of a the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to Administrative Agent, (iii) all such Indebtedness shall satisfy the requirements of Section 5.13 and (iv) any payment by any such Guarantor Subsidiary under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to Company or to any of its Subsidiaries for whose benefit such payment is made;
(c) Indebtedness incurred by Holdings with respect to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness and (iii) in respect of any Indebtedness owing by a Subsidiary that is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d)Permitted Holdings Debt;
(d) Indebtedness incurred by Borrower Holdings or any of its Subsidiaries in the ordinary course of business and arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) obligations, or from guaranties or letters of credit, surety bonds, bonds or performance bonds or similar obligations securing the performance of Borrower Holdings or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower Holdings or any of its Subsidiaries;
(e) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal or similar obligations incurred in the ordinary course of business;
(f) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accountsDeposit Accounts;
(gf) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees of and licensees to and of Borrower Holdings and its SubsidiariesSubsidiaries not in any event to exceed $5,000,000 at any time outstanding;
(g) Indebtedness described in Schedule 6.1, but not any extensions, ------------ renewals or replacements of such Indebtedness;
(h) Indebtedness with respect to "dark fiber" Capital Leases in an aggregate amount not to exceed at any time $100,000,000; provided that -------- obligations incurred with respect to such Capital Leases during any Fiscal Year shall not exceed $30,000,000; provided further that the primary obligor in --------------------- respect of all such Indebtedness is the Dark Fiber Subsidiary, it being agreed however that Holdings (but not Company or any other Subsidiary thereof) may, to the extent permitted under the Holdings Senior Notes, guarantee such Indebtedness;
(i) Indebtedness in the form of letters of credit for the account of Holdings in an aggregate face amount not to exceed $3,000,000 at any time outstanding; and
(j) other Indebtedness of Holdings and its Subsidiaries in an aggregate amount not to exceed at any time $20,000,000, provided that only up to -------- $15,000,000 of which may be secured by Liens on the assets of Holdings in accordance with Section 6.2(m) and the balance shall be unsecured.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Focal Communications Corp)
Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except:
(a) the Obligations;
(b) Senior Notes in an aggregate principal amount not (i) Indebtedness of any Guarantor Subsidiary to exceed $4,350,000,000;
Company or to any other Guarantor Subsidiary, or of Company to any Guarantor Subsidiary; (cii) Indebtedness of any Subsidiary of Borrower Company that is not a Guarantor to Borrower Company or any other such Subsidiary of Company in an aggregate principal amount that, together with Indebtedness under the proviso of Section 6.1(h), does not exceed $7,500,000 at any time; and (iii) Indebtedness of Company or of Borrower any Guarantor Subsidiary to any Subsidiary of its SubsidiariesCompany that is not a Guarantor; provided that provided, (iA) all such Indebtedness, if owed to a Credit Party, Indebtedness under this clause (b) shall be evidenced by the Intercompany Note or another promissory note notes and all such notes shall be subject to a First Priority Lien pursuant to the applicable Collateral DocumentPledge and Security Agreement (except to the extent that the Indebtedness is owed to a Foreign Subsidiary), (iiB) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of a the applicable promissory notes or an intercompany subordination agreement with respect that in any such case, is reasonably satisfactory to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness Administrative Agent, and (iiiC) any payment by any such Guarantor Subsidiary under any guaranty of the Obligations shall result in respect a pro tanto reduction of the amount of any Indebtedness owing owed by a such Subsidiary that to Company or to any of its Subsidiaries for whose benefit such payment is made;
(c) (i) the Senior Subordinated Notes in an aggregate principal amount not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under exceed $320,000,000 and (ii) preferred Capital Stock issued by Holdings pursuant to the proviso to Section 6.6(d)Equity Documents;
(d) Indebtedness incurred by Borrower Holdings or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) obligations, or from guaranties or letters of credit, surety bonds, bonds or performance bonds or similar obligations securing the performance of Borrower Company or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower Holdings or any of its Subsidiaries;
(e) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal or similar obligations incurred in the ordinary course of business;
(f) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accounts;
(g) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees of and licensees to and of Borrower Holdings and its Subsidiaries;
(h) guaranties by Company of Indebtedness of a Subsidiary and guaranties by a Subsidiary of Company of Indebtedness of Company or a Subsidiary of Company with respect to, in each case, Indebtedness otherwise permitted to be incurred pursuant to this Section 6.1; provided, that the aggregate amount of Indebtedness of Subsidiaries of Company that are not Guarantors which has been guaranteed by Company and the Guarantor Subsidiaries, together with Indebtedness under clause (b)(ii), shall not exceed $7,500,000 at any time;
(i) Existing Indebtedness not refinanced on the Closing Date;
(j) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an aggregate amount not to exceed at any time $10,000,000; provided, any such Indebtedness (i) shall be secured only by the asset acquired in connection with the incurrence of such Indebtedness, and (ii) shall constitute not less than 95% of the aggregate consideration paid with respect to such asset;
(k) Indebtedness in an amount not to exceed $10,000,000 in the aggregate at any time outstanding (i) consisting of Subordinated Indebtedness issued to a seller in connection with a Permitted Acquisition or (ii) incurred or assumed by Company and its Subsidiaries as a result of Permitted Acquisitions (A) that is unsecured or secured only by collateral consisting of property, plant and equipment of the acquired business or entity that was provided by such business or entity prior to the consummation of any such Permitted Acquisition and (B) that was not incurred in anticipation of any such Permitted Acquisition;
(l) Indebtedness under Hedge Agreements required pursuant to, and entered into in accordance with, Section 5.12 or other Interest Rate Agreements or Currency Agreements entered into in the ordinary course of business and not for speculative purposes;
(m) obligations on account of non-current accounts payable which the applicable Credit Party is contesting in good faith and by appropriate proceedings diligently conducted and with respect to which adequate reserves have been established and are being maintained in accordance with GAAP;
(n) other unsecured Indebtedness of Holdings and its Subsidiaries, which is subordinated to the Obligations in a manner satisfactory to Administrative Agent in an aggregate amount not to exceed at any time $15,000,000;
(o) Indebtedness incurred by Foreign Subsidiaries of Company in an aggregate principal amount not exceeding $5,000,000 at any time; and
(p) any extensions, renewals, refinancings or replacements of Indebtedness described in subsection (c)(i), (i), (j) or (l) above, including renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement; provided that such extensions, renewals, refinancings and replacements of any such Indebtedness shall be permitted only so long as the covenants, events of default, subordination and other provisions thereof (including any guarantees thereof) are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being extended, renewed refinanced or replaced, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being extended, renewed refinanced or replaced; provided, further, such Indebtedness permitted under this subsection (p) shall not (i) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed, refinanced or replaced, (ii) exceed in principal amount the Indebtedness being renewed, extended, refinanced or replaced (plus accrued interest thereon and premium, if any) or (iii) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Services International LLC)
Indebtedness. No Credit Party shallThe Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except:
(a) the ObligationsSecured Obligations (including any Additional Term Loans and any Additional Revolving Loans);
(b) Senior Notes in an aggregate principal amount Indebtedness of the Borrower to Holdings and/or any Restricted Subsidiary and/or of any Restricted Subsidiary to Holdings, the Borrower and/or any other Restricted Subsidiary; provided that any Indebtedness of any Loan Party to any Restricted Subsidiary that is not a Loan Party must be unsecured and expressly subordinated to exceed $4,350,000,000the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent;
(c) Indebtedness of any Subsidiary of Borrower to Borrower or any other such Subsidiary or of Borrower to any of its Subsidiaries; provided that (i) all such Indebtedness, if owed to a Credit Party, shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral Document, (ii) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of a subordination agreement with respect to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness and (iii) in respect of any Indebtedness owing by a Subsidiary that is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d)[reserved];
(d) Indebtedness incurred by Borrower or any of its Subsidiaries arising from agreements any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date or any other purchase of assets or Capital Stock, and Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) or arising from guaranties or guaranties, letters of credit, bank guaranties, surety bonds, performance bonds or similar obligations instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or any of its Subsidiariesagreement;
(e) Indebtedness which may be deemed to exist of the Borrower and/or any Restricted Subsidiary (i) pursuant to any guarantiestenders, performancestatutory obligations, bids, leases, governmental contracts, trade contracts, surety, statutorystay, appeal customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
(f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including 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, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods 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;
(fh) Guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower, any Restricted Subsidiary and/or any joint venture with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, in respect of netting servicesany Indebtedness with an outstanding principal amount in excess of $10,000,000, overdraft protections and otherwise in connection with deposit accountsdescribed on Schedule 6.01;
(gj) guaranties 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 $82,250,000 and 35% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the obligations 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 suppliers$82,250,000 and 35% 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 an acquisition permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation thereof, customers(ii) no Event of Default under Section 7.01(a), franchisees (f) or (g) exists and (iii) at the Borrower’s election, either (A) at least $1.00 of additional Indebtedness can be incurred at such time under Section 6.01(w)(i)(A), (B) or (C), as applicable, or (B) such Indebtedness is in an aggregate principal amount outstanding not to exceed the greater of $58,750,000 and licensees 25% of Consolidated Adjusted EBITDA;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of any Parent Company or any current or former director, officer, employee, member of management, manager or consultant of any Parent Company, the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of any Parent Company permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (j), (m), (n), (q), (r), (u), (w), (x), (y), and (z) of Borrower this Section 6.01 (in any case, including any refinancing Indebtedness incurred in respect thereof, “Refinancing Indebtedness”) and its Subsidiariesany 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 (x) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (u) and/or (y) (other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Latest Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of the outstanding Term Loans at such time,
(iii) the terms of any Refinancing Indebtedness with an original principal amount in excess of the Threshold Amount (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 (x) any covenants or any other provisions applicable only to periods after the applicable Maturity Date of the debt then-being refinanced as of such date or (y) any covenants or provisions which are market terms and conditions (taken as a whole) at the time of incurrence or issuance for the applicable type of Indebtedness) (as reasonably determined by the Borrower),
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (j), (m), (n)(iii)(B), (r), (u), (w), (x)(i), (y) and (z) (solely as it relates to the Shared Incremental Amount) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans or as a Replacement Revolving Facility, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and if the Liens securing such Indebtedness were originally contractually subordinated to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, (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 Holdings may not be the primary obligor in respect of the applicable Refinancing Indebtedness if Holdings was not the primary obligor in respect of the relevant refinanced Indebtedness), (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i)), and (D) as of the date of the incurrence of such Indebtedness and after giving effect thereto, no Event of Default under Section 7.01(a), (f) or (g) exists, and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured shall be subject to an Acceptable Intercreditor Agreement, (B) if the Indebtedness being refinanced, refunded or replaced is secured, it is not secured by any assets other than the Collateral, (C) if the Indebtedness being refinanced, refunded or replaced is Guaranteed, it shall not be Guaranteed by any Person other than one or more Loan Parties and (D) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement; it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b)(vi);
(q) Indebtedness incurred to finance any acquisition permitted hereunder after the Closing Date; provided that (i) before and after giving effect to such acquisition on a Pro Forma Basis, no Event of Default under Section 7.01(a), (f) or (g) exists, (ii) after giving effect to such acquisition on a Pro Forma Basis (in each case, without “netting” the cash proceeds of the applicable Indebtedness being incurred or any other concurrent incurrence of Indebtedness in connection therewith) (A) if such Indebtedness is secured by a Lien on the Collateral that is pari passu with the Lien on the Collateral securing the Secured Obligations, the First Lien Leverage Ratio does not exceed the greater of (1) 3.65:1.00 and (2) the First Lien Leverage Ratio as of the last day of the then-most recently completed Fiscal Quarter, (B) if such Indebtedness is secured by a Lien on the Collateral that is junior to the Lien on the Collateral securing the Secured Obligations, at the election of the Borrower, either (x) the Secured Leverage Ratio does not exceed the greater of (1) 4.65:1.00 and (2) the Secured Leverage Ratio as of the last day of the then-most recently completed Fiscal Quarter or
Appears in 1 contract
Sources: Credit Agreement (CCC Intelligent Solutions Holdings Inc.)
Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectlyIncur, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect permit to exist any Indebtedness, except:
(a) (i) Indebtedness existing or committed on the ObligationsClosing Date (provided, that any such Indebtedness that is (x) not intercompany Indebtedness and (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) Senior Notes in an aggregate principal amount not (i) Indebtedness created hereunder (including pursuant to exceed $4,350,000,000Section 2.21) and under the other Loan Documents and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent with past practice or industry practices;
(e) Indebtedness of the Borrower to Holdings or any Subsidiary and of any Subsidiary to Holdings, the Borrower or any other such Subsidiary or of Borrower Subsidiary; provided, that Indebtedness owed by any Loan Party to any of its Subsidiaries; provided that (i) all such Indebtedness, if owed to a Credit Party, shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral Document, (ii) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Loan Party incurred pursuant to this Section 6.01(e) shall be unsecured and subordinated in right of payment to the payment Loan Obligations under this Agreement on subordination terms described in full of the Obligations pursuant to the terms of a subordination agreement with respect to such Indebtedness intercompany note substantially in the form of Exhibit J-2 among J to the Original Credit Parties Agreement or on substantially identical subordination terms or other subordination terms reasonably satisfactory to the Administrative Agent and such Subsidiaries party to such Indebtedness and (iii) in respect of any Indebtedness owing by a Subsidiary that is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d);
(d) Indebtedness incurred by Borrower or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) or from guaranties or letters of credit, surety bonds, performance bonds or similar obligations securing the performance of Borrower or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or any of its Subsidiaries;
(e) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal or similar obligations incurred in the ordinary course of businessBorrower;
(f) Indebtedness in respect of netting servicesperformance bonds, overdraft protections bid bonds, appeal bonds, surety bonds and otherwise completion guarantees and similar obligations, in connection with deposit accounts;
(g) guaranties 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 obligations honoring by a bank or other financial institution of suppliersa check, customersdraft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services, franchisees in each case incurred in the ordinary course of and licensees to and of Borrower and its Subsidiariesbusiness;
Appears in 1 contract
Sources: Successor Agent Appointment and Agency Transfer Agreement (Rackspace Technology, Inc.)
Indebtedness. No Credit Loan Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, indirectly create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, exceptIndebtedness except for the following:
(a) the Obligations;
(b) Senior Notes in an aggregate principal amount not to exceed $4,350,000,000;
(c) Indebtedness of any Subsidiary Guarantor to the Borrowers or to any other Guarantor, or of any Borrower to Holdings or to any other Guarantor, or of Holdings to any Borrower or any other such Subsidiary or of Borrower to any of its SubsidiariesGuarantor; provided that provided, (i) all if such Indebtedness, if owed to a Credit Party, Indebtedness shall be evidenced by the Intercompany Note or another promissory note and notes, all such notes shall be subject to a First Priority Lien pledged pursuant to the applicable Collateral DocumentPledge and Security Agreement, (ii) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of a any applicable promissory notes or an intercompany subordination agreement with respect that in any such case, is reasonably satisfactory to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness Administrative Agent, and (iii) the Borrowers and the Subsidiary Guarantors shall not be permitted to make any payments to Holdings in respect of any such Indebtedness owing to Holdings unless such payments would be expressly permitted to be made, if made by way of a Subsidiary that is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso dividend or other Restricted Payment pursuant to Section 6.6(d)8.5;
(dc) Indebtedness incurred by Borrower Holdings or any of its Subsidiaries arising from agreements providing for indemnification, earn-outs, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) obligations, or from guaranties or letters of credit, surety bonds, bonds or performance bonds or similar obligations securing the performance of Borrower Holdings or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions Asset Sale of any business, assets or Subsidiary of Borrower Holdings or any of its SubsidiariesSubsidiaries permitted hereunder;
(ed) Indebtedness which may be deemed to exist pursuant to any worker’s compensation claims, self-insurance obligations, guaranties, performance, surety, statutory, appeal appeal, custom bonds or similar obligations incurred in the ordinary course of business;
(fe) Indebtedness in respect of (x) netting services, overdraft protections and otherwise in connection with deposit accountsDeposit Accounts or Securities Accounts and (y) the endorsement of instruments for collection or deposits in the ordinary course of business;
(gf) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees of and licensees to and of Borrower Holdings and its Subsidiaries;
(g) guaranties by Holdings and its Subsidiaries of Indebtedness or other obligations of Subsidiaries of Holdings or guaranties by a Subsidiary of Holdings of Indebtedness or other obligations of Holdings and its Subsidiaries with respect, in each case, to Indebtedness otherwise permitted to be incurred pursuant to this Section 8.1, or other obligations not prohibited hereunder; provided, however, if any guaranty of Indebtedness or other obligations of a Subsidiary that is not a Loan Party gives rise to an Investment in such Subsidiary, such Investment must be permitted under Section 8.3;
(h) Indebtedness existing on the date hereof and described in Schedule 8.1, together with any Permitted Refinancing of any Indebtedness permitted under this clause (h);
(i) purchase money Indebtedness and Indebtedness with respect to Capital Leases, in each case, incurred by the Borrowers or any Subsidiary to finance the acquisition of fixed assets, in an aggregate amount not to exceed $50,000,000 at any time outstanding (together with any Permitted Refinancing of any Indebtedness permitted under this clause (i)); provided, that any such Indebtedness (including any Permitted Refinancing thereof) shall be secured only by the assets (and proceeds thereof) acquired in connection with the initial incurrence of such Indebtedness;
(j) Indebtedness under the Term Loan Facility in an aggregate principal amount not to exceed $285,000,000 or such other amounts permitted under the Intercreditor Agreement, and any Permitted Refinancing thereof;
(k) Acquired Indebtedness, in an aggregate principal amount not to exceed $20,000,000 at any time outstanding together with any Permitted Refinancing of any Indebtedness permitted under this clause (k);
(l) other unsecured Indebtedness of Holdings and its Subsidiaries in an aggregate principal amount not to exceed at any time $25,000,000;
(m) Indebtedness of any Borrower under Permitted Seller Notes issued as consideration in connection with a Permitted Acquisition, in an aggregate principal amount not to exceed at any time $10,000,000;
(n) Indebtedness arising under Hedging Contracts permitted under Section 8.15 (No Speculative Transactions);
(o) Indebtedness incurred in connection with Asset Sales constituting sale leaseback transactions provided that the outstanding principal amount of such Indebtedness (other than sale leaseback transactions involving distribution centers) shall not exceed $20,000,000 in the aggregate; and
(p) Indebtedness in respect of letters of credit issued for the account of any of the Subsidiaries of Holdings to finance the purchase of Inventory so long as (x) such Indebtedness is unsecured and (y) the aggregate principal amount of such Indebtedness does not exceed $50,000,000 at any time.
Appears in 1 contract
Sources: Credit Agreement (J Crew Group Inc)
Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectlyIncur, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect permit to exist any Indebtedness, except:
(a) Indebtedness existing on the ObligationsClosing Date (provided, that any such Indebtedness that is 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) Senior Indebtedness created hereunder (including pursuant to Section 2.21) and under the other Loan Documents and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent with past practice or industry practices;
(e) Indebtedness of the Borrower to Holdings or any Subsidiary and of any Subsidiary to Holdings, the Borrower or any other Subsidiary; provided, that (i) Indebtedness of any Subsidiary that is not a Subsidiary Loan Party owing to the Loan Parties shall be subject to Section 6.04(b) and (ii) Indebtedness owed by any Loan Party to Holdings or any Subsidiary that is not a Loan Party shall be unsecured and subordinated to the Loan Obligations under this Agreement on subordination terms substantially in the form of Exhibit F hereto or on other subordination terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services, in each case incurred the ordinary course of business;
(i) Indebtedness of a Subsidiary acquired after the Closing Date or a person merged or consolidated with the Borrower or any Subsidiary after the Closing Date and Indebtedness otherwise incurred or assumed by the Borrower or any Subsidiary in connection with the acquisition of 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 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 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, warehouse receipts or similar instruments issued to support performance obligations and trade letters of credit (other than obligations in respect of other Indebtedness) in the ordinary course of business or consistent with past practice or industry practices;
(p) Indebtedness 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, in each case, in the ordinary course of business consistent with past or industry practice;
(r) (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 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), (l)(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;
(s) 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 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), (l)(i) and (r)(i), the greater of $25,000,000 and 2.5% of Consolidated Total Assets and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(t) Indebtedness of Subsidiaries that are not 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 thereof;
(u) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower or any Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided, that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms in the ordinary course of business 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 incurred 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, $4,350,000,000350,000,000, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(cy) obligations in respect of Cash Management Agreements;
(z) Refinancing Notes hereunder and any Permitted Refinancing Indebtedness of any Subsidiary of Borrower to Borrower or any other such Subsidiary or of Borrower to any of its Subsidiaries; provided that incurred in respect thereof;
(i) all Indebtedness in an aggregate principal amount not to exceed at the time of incurrence an amount equal to clause (i) of the definition of Incremental Amount at such Indebtednesstime, if owed and (ii) any Permitted Refinancing Indebtedness in respect thereof; provided, that (A) the incurrence of any Indebtedness for borrowed money pursuant to a Credit Party, shall be evidenced by the Intercompany Note or another promissory note and this clause (aa) shall be subject to a First Priority Lien the penultimate paragraph of this Section 6.01 and (B) if any such Indebtedness incurred pursuant to the applicable Section 6.01(aa)(i) is secured by pari passu Liens on Collateral Document, (ii) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of a subordination agreement with respect to such Indebtedness substantially Section 6.02(jj) and is in the form of Exhibit J-2 among term loans (other than High Yield-Style Loans), then the Credit Parties and such Subsidiaries party to incurrence of such Indebtedness and (iii) in respect of any Indebtedness owing by a Subsidiary that is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso pursuant to Section 6.6(d)6.01(aa)(i) shall be further subject to the last paragraph of this Section 6.01 to the extent applicable;
(dbb) [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 Subsidiaries arising from agreements providing for indemnificationSubsidiary to current or former officers, adjustment of purchase price directors and employees, their respective estates, spouses or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) or from guaranties or letters of credit, surety bonds, performance bonds or similar obligations securing the performance of Borrower or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or any of its Subsidiaries;
(e) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal or similar obligations incurred in the ordinary course of business;
(f) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accounts;
(g) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees of and licensees to and of Borrower and its Subsidiaries;forme
Appears in 1 contract
Sources: First Lien Credit Agreement (DS Services of America, Inc.)
Indebtedness. No Credit Party shall, nor shall it permit The Subscriber acknowledges that the Company may incur indebtedness at any of its Subsidiaries totime and from time to time, directly or indirectlyindirectly through one or more subsidiaries (or series of subsidiaries) to borrow against the Subscriber’s Capital Commitments, createfinance investments or to warehouse loans, incurincluding without limitation, assume one or guarantymore credit facilities to finance its investments. Those facilities may be secured by an assignment by way of security, pledge, charge, mortgage or other security interest, as the case may be, of or in (A) the Undrawn Capital Commitments, the proceeds of Drawdown Purchases and the right to receive capital contributions from the Subscriber and Other Investors, (B) the Company’s right to make drawdowns on those Capital Commitments, deliver Drawdown Notices and receive the proceeds of Drawdown Purchases (including any powers of attorney or other delegation of the right to deliver Drawdown Notices), and/or (C) any deposit or other account into which the proceeds of Drawdown Purchases will be deposited, and all claims, rights and interests that the Company may have relating to or arising from clause (A), clause (B) or this clause (C) (including the right to exercise any remedies of the Company under or related to this Subscription Agreement in respect of any such Drawdown Notice or Drawdown Purchase), which may be granted to a lender or an agent for such a lender pursuant to any loan or security documentation entered into between the Company and any lender (any such facility described in this sentence, a “Subscription Facility”). The Subscriber may, upon request by the Company or the lender (if authorized to make such request under the relevant security documentation), be required to acknowledge the existence of a subscription credit facility, confirm the terms of the Subscriber’s Capital Commitment and the amount of its Unfunded Capital Commitment to the lender, to honor capital calls made by the lender or other credit party, to provide financial information reasonably requested by the lender and to execute other documents as may be reasonably requested in connection with obtaining such a facility. In connection with any such facility, the Subscriber agrees and acknowledges the following, for the benefit of the lenders: (1) it is and shall remain absolutely and unconditionally obligated to make Drawdown Purchases pursuant to Section 3 (including, without limitation, those required as a result of the failure of any Other Investor to advance funds with respect to a Drawdown Notice made pursuant to an agreement with the Other Investor), pro rata among all non-Defaulting Stockholders based on their respective Capital Commitments and not in excess of the Subscriber’s Capital Commitment, without defense, counterclaim or offset (including without limitation any defense of fraud or mistake, or otherwise become any defense under Section 365 of the U.S. Bankruptcy Code but excluding, for the avoidance of doubt, any defense available under this Subscription Agreement), all of which will, to the fullest extent permitted by law, be waived as against the lenders (provided, however, that the foregoing waiver of defenses shall be of no force or remain directly effect if and to the extent that the existence of the waiver would constitute or indirectly liable result in there being a prohibited transaction under the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) or Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”)), (2) that all Drawdown Purchases made by the Subscriber in connection with a facility will be made to an account (in which such lenders may have a security interest under relevant security documentation) as directed by the Company or the lenders (if authorized to make such direction under the relevant security documentation), and (3) that any lender or credit party under a Subscription Facility is extending credit to the Company in reliance on such Subscriber’s funding its Capital Commitments as such lender’s primary source of repayment. For the avoidance of doubt, a Drawdown Purchase made by the Subscriber upon the request of a lender shall reduce the Subscriber’s Capital Commitment and be treated in all respects in the same manner as a Drawdown Purchase made upon the request of the Company. Notwithstanding anything in this Agreement to the contrary, the Subscriber acknowledges and agrees: (i) that any limitation with respect to any Indebtednesscapital contribution shall not be applicable with respect to any Drawdown Notice the purpose of which is to repay amounts due under a Subscription Facility, except:
(a) regardless of whether the Obligations;
(b) Senior Notes in an aggregate principal amount not to exceed $4,350,000,000;
(c) Indebtedness of any Subsidiary of Borrower to Borrower related Drawdown Notice is issued by the Company or any other such Subsidiary lender or of Borrower to any of its Subsidiariescredit party under the Subscription Facility; provided that (i) all such Indebtedness, if owed to a Credit Party, shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral Document, (ii) all if such Indebtedness owing by a Credit Party Subscriber is entitled to a Subsidiary that is not a Credit Party withdraw from the Company pursuant to any provision of this Agreement, prior to the effectiveness of such withdrawal, such Subscriber shall be unsecured and subordinated in right obligated to fund its pro rata share of payment Drawdown Purchases necessary to the payment in full of the Obligations pursuant to cure any borrowing base default under the terms of any Subscription Facility as a subordination agreement with respect to direct or indirect result of such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness and (iii) in respect of any Indebtedness owing by a Subsidiary that is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d);
(d) Indebtedness incurred by Borrower or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) or from guaranties or letters of credit, surety bonds, performance bonds or similar obligations securing the performance of Borrower or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or any of its Subsidiaries;
(e) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal or similar obligations incurred in the ordinary course of business;
(f) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accounts;
(g) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees of and licensees to and of Borrower and its Subsidiaries;withdrawal.
Appears in 1 contract
Indebtedness. No Credit Party shallCompany shall not, nor and shall it not permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to to, any Indebtedness, except:
(ai) Company may become and remain liable with respect to the ObligationsObliga tions;
(bii) Senior Notes in an aggregate principal amount not Company and its Subsidiaries may become and remain liable with respect to exceed $4,350,000,000Contingent Obligations permitted by subsection 7.4 and, upon any matured obligations actually arising pursuant thereto, the Indebtedness corresponding to the Contingent Obligations so extinguished;
(ciii) Company and its Subsidiaries may become and remain liable with respect to Indebtedness in respect of any Subsidiary Capital Leases; provided that such Capital Leases are permitted under the terms of Borrower subsection 7.9;
(iv) Company may become and remain liable with respect to Borrower or any other such Subsidiary or of Borrower Indebtedness to any of its wholly-owned Subsidiaries, and any wholly-owned Subsidiary of Company may become and remain liable with respect to Indebtedness to Company or any other wholly-owned Subsidiary of Company; provided that (ia) subject to subsection 6.11, all such Indebtedness, if owed to a Credit Party, intercompany Indebtedness shall be evidenced by the Intercompany Note or another promissory note and shall be subject notes that are pledged to a First Priority Lien Administrative Agent pursuant to the terms of the applicable Collateral DocumentDocuments, (iib) all such intercompany Indebtedness owing owed by a Credit Party Company to a any of its Subsidiaries or by any Subsidiary that is not a Credit Party to Company or any other Subsidiary shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement, in each case approved by Administrative Agent, and (c) any payment by any Subsidiary of Company under any guaranty of the Obligations shall result in a subordination agreement pro tanto reduction of the amount of any intercompany Indebtedness owed by such Subsidiary to Company or to any of its Subsidiaries for whose benefit such payment is made;
(v) Company and its Subsidiaries, as applicable, may remain liable with respect to each of the items of existing Indebtedness described in Schedule 7.1 annexed hereto and any Indebtedness incurred to refinance such existing Indebtedness; provided that after giving effect to such refinancing Indebtedness and the repayment of the corresponding existing Indebtedness with the proceeds thereof, (a) the aggregate principal amount of the refinancing Indebtedness and the corresponding existing Indebtedness so refinanced shall not be greater than the outstanding principal amount of such existing Indebtedness immediately prior to such refinancing, (b) the weighted average life to maturity of such refinancing Indebtedness shall be no shorter than the existing Indebtedness being refinanced and (c) such refinancing Indebtedness shall not be secured by any additional property than that which secures the existing Indebtedness being refinanced;
(vi) Company may remain liable with respect to Indebtedness evidenced by the Senior Subordinated Notes in an aggregate principal amount not to exceed $575,000,000 minus the aggregate principal amount thereof from time to time repurchased, redeemed or prepaid;
(vii) Company and its Subsidiaries may become and remain liable with respect to Indebtedness incurred to finance (or may assume Indebtedness originally incurred to finance) (a) the purchase price of equipment, fixtures and any other similar property or the remodeling or other improvement costs of any facility of Company or any of its Subsidiaries or (b) the purchase price of any Real Property Assets consisting of fee interests in stores; provided that the aggregate principal amount of such Indebtedness when incurred (and, in the case of assumed Indebtedness, when originally incurred) shall not be less than 80% or more than 100% of the fair market value of (i) the equipment, fixtures and any other similar property acquired plus the reasonable installation and delivery charges associated therewith or the remodeling or other improvement costs relating to such facility or (ii) such Real Property Assets, as applicable; provided further that (1) the aggregate principal amount of all such Indebtedness incurred or assumed during any Fiscal Year for purposes described in the first clause (a) of this subsection 7.1(vii) shall not exceed $30,000,000 and (2) the aggregate principal amount of all Indebtedness incurred to finance the purchase price of any such Real Property Assets (together with assumed Indebtedness originally incurred to finance the purchase price of any such Real Property Assets) shall not exceed $25,000,000 at any time;
(viii) Company may become and remain liable with respect to unsecured Indebtedness so long as each of the following conditions is satisfied: (A) Company becomes liable with respect to such Indebtedness substantially concurrently with the termination of a lease of a Related Asset or the transfer to Company of either (i) an unencumbered fee interest in a Related Asset by the form Owner Trustee or (ii) the proceeds realized by the Owner Trustee or Company from the sale of Exhibit J-2 among a Related Asset or as the Credit Parties result of a refinancing of such Indebtedness (such proceeds, the "Related Asset Proceeds"); (B) the principal amount of such Indebtedness does not exceed the then outstanding amount of indebtedness incurred by the Owner Trustee to acquire such Related Asset plus accrued interest and premiums thereon and the cost of any such refinancing; (C) if the Related Assets are transferred to Company, Company closes an Asset Sale selling the Related Assets so transferred not later than 90 days after such Related Assets are transferred to Company; (D) the Net Asset Sale Proceeds of the Asset Sale of the Related Assets or the Related Asset Proceeds, as the case may be, are applied by Company to permanently reduce the outstanding principal amount of Indebtedness of Company under this Agreement pursuant to subsection 2.4B(iii)(a) within the third Business Day following the date of receipt by Company of such Net Asset Sale Proceeds or Related Asset Proceeds and without regard to any exclusions permitted pursuant to clauses (i)-(v) of the proviso therein contained; and (E) the outstanding principal amount of the Indebtedness permitted pursuant to this clause (viii) shall not exceed the sum of (1) $25,000,000 plus (2) on amount equal to the Net Asset Sales Proceeds of all Asset Sales of Related Assets and all Related Asset Proceeds which have been applied to permanently reduce the Loans pursuant to the foregoing clause (D).
(ix) Company and its Subsidiaries may become and remain liable with respect to Indebtedness represented by Deferred Trade Payables in an aggregate amount for all such Indebtedness not to exceed $10,000,000 at any time outstanding;
(x) Subsidiaries of Company acquired after the Closing Date, the acquisition of which is permitted under this Agreement, may remain liable with respect to Indebtedness existing immediately prior to the time any such entity became a Subsidiary of Company in an aggregate amount for all such Subsidiaries party not to such Indebtedness and (iii) in respect of exceed $5,000,000 at any Indebtedness owing by a Subsidiary time outstanding; provided that is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d);not incurred in contemplation of such acquisition; and
(dxi) Indebtedness incurred by Borrower or any of Company and its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) or from guaranties or letters of credit, surety bonds, performance bonds or similar obligations securing the performance of Borrower or any such Subsidiary pursuant may become and remain liable with respect to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or any of its Subsidiaries;
(e) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal or similar obligations incurred in the ordinary course of business;
(f) other Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accounts;
(g) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees of and licensees an aggregate principal amount not to and of Borrower and its Subsidiaries;exceed $15,000,000 at any time outstanding.
Appears in 1 contract
Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectlyIncur, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable permit to exist any Indebtedness (other than intercompany current liabilities incurred in the ordinary course of business in connection with respect to any Indebtednessthe cash management operations of the Company and its subsidiaries), except:
(a) (i) Indebtedness (other than under letters of credit) existing on the ObligationsEffective Date and set forth on Schedule 6.01(a) and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness and (ii) Indebtedness under letters of credit existing on the Effective Date and set forth on Schedule 6.01(b), without giving effect to any extension, renewal or replacement thereof;
(b) Senior Notes in an aggregate principal amount not to exceed $4,350,000,000Indebtedness created hereunder and under the other Loan Documents;
(c) Indebtedness of any Subsidiary of Borrower to Borrower or any other such Subsidiary or of Borrower to any of its Subsidiaries; provided that (i) all such Indebtedness, if owed to a Credit Party, shall be evidenced by Holdings and the Intercompany Note or another promissory note and shall be subject to a First Priority Lien Subsidiaries pursuant to the applicable Collateral Document, (ii) all such Indebtedness owing Swap Agreements permitted by a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of a subordination agreement with respect to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness and (iii) in respect of any Indebtedness owing by a Subsidiary that is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d)6.11;
(d) Indebtedness incurred by Borrower owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to Holdings or any of its Subsidiaries arising from agreements providing for indemnificationSubsidiary, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) or from guaranties or letters of credit, surety bonds, performance bonds or similar obligations securing the performance of Borrower or any such Subsidiary pursuant to reimbursement or indemnification obligations to such agreementsPerson, in connection provided that upon the incurrence of Indebtedness with Permitted Acquisitions or permitted dispositions of any businessrespect to reimbursement obligations regarding workers’ compensation claims, assets or Subsidiary of Borrower or any of its Subsidiariessuch obligations are reimbursed not later than 30 days following such incurrence;
(e) Indebtedness which may be deemed to exist pursuant of any Borrower to any guarantiesSubsidiary or other Borrower and of any Subsidiary to any Borrower or any other Subsidiary, performanceprovided that (i) Indebtedness of any Subsidiary that is not a Domestic Subsidiary Loan Party to the Loan Parties shall be subject to Section 6.04(b) and (ii) Indebtedness (the “Subordinated Intercompany Debt”) of any Specified Loan Party to any Subsidiary (unless such Indebtedness shall have been pledged in favor of the Collateral Agent by the payee Subsidiary) shall be subordinated to the Obligations in the manner set forth in Exhibit F (it being agreed that such subordination provisions will not restrict the repayment of any such Subordinated Intercompany Debt other than when an Event of Default exists);
(f) Indebtedness in respect of performance bonds, surety, statutorybid bonds, appeal or 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 incurred in the ordinary course of business;
(fg) Indebtedness in respect arising from the honoring by a bank or other financial institution of netting servicesa check, overdraft protections and otherwise in connection with deposit accounts;
(g) guaranties draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services in the ordinary course of the obligations business, provided that (x) such Indebtedness (other than credit or purchase cards) is extinguished within three Business Days of suppliers, customers, franchisees its incurrence and (y) such Indebtedness in respect of and licensees to and of Borrower and credit or purchase cards is extinguished within 60 days from its Subsidiariesincurrence;
Appears in 1 contract
Sources: Credit Agreement (Celanese CORP)
Indebtedness. No Credit Party shallSenior Indebtedness shall continue to be Senior Indebtedness and entitled to the benefits of these subordination provisions irrespective of any amendment, nor shall it permit modification or waiver of any term of its Subsidiaries to, directly the Senior Indebtedness or indirectly, create, incur, assume extension or guaranty, or otherwise become or remain directly or indirectly liable with respect to any renewal of the Senior Indebtedness, except:
. In the event (a) of any payment by, or distribution of assets of, the Obligations;
Company of any kind or character, whether in cash, property or securities, to creditors upon any dissolution, winding-up, liquidation or reorganization of the Company, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other proceedings, or (b) Senior Notes in an aggregate principal amount not subject to exceed $4,350,000,000;
(c) Indebtedness the provisions of any Subsidiary of Borrower to Borrower or any other such Subsidiary or of Borrower to any of its Subsidiaries; provided Section 1402 that (i) all a default shall have occurred and be continuing with respect to the payment of principal, interest or any other monetary amounts due and payable on any Senior Indebtedness and such default shall have continued beyond the period of grace, if any, specified in the instrument evidencing such Senior Indebtedness, if owed (and the Trustee shall have received written notice thereof from the Company or one or more holders of Senior Indebtedness or their representative or representatives or the trustee or trustees under any indenture pursuant to which any such Senior Indebtedness may have been issued), or (ii) the maturity of any Senior Indebtedness shall have been accelerated because of a Credit Partydefault in respect of such Senior Indebtedness (and the Trustee shall have received written notice thereof from the Company or one or more holders of Senior Indebtedness or their representative or representatives or the trustee or trustees under any indenture pursuant to which any such Senior Indebtedness may have been issued), then:
(i) the holders of all Senior Indebtedness shall first be entitled to receive, in the case of (a) above, payment of all amounts due or to become due upon all Senior Indebtedness and, in the case of subclauses (i) and (ii) of clause (b) above, payment of all amounts due thereon, or provision shall be made for such payment in money or money's worth, before the Holders of any of the Securities are entitled to receive any payment on account of the principal of or any premium or interest on the indebtedness evidenced by the Securities, including, without limitation, any payments made pursuant to Article Eleven or Article Twelve;
(ii) any payment by, or distribution of assets of, the Company of any kind or character, whether in cash, property or securities, to which the Holders of any of the Securities would be entitled except for the provisions of this Article, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of such Securities, shall be evidenced paid or delivered by the Intercompany Note Person making such payment or another promissory note and shall be subject to distribution, whether a First Priority Lien pursuant trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the applicable Collateral Document, (ii) all holders of such Senior Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of such Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of the Obligations pursuant all Senior Indebtedness remaining unpaid after giving effect to any concurrent payment or distribution (or provision therefor) to the terms holders of a subordination agreement with respect such Senior Indebtedness, before any payment or distribution is made to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness and (iii) in respect of any Indebtedness owing by a Subsidiary that is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d);
(d) Indebtedness incurred by Borrower or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting Holders of the deferred purchase price of property acquired in a Permitted Acquisition) or from guaranties or letters of credit, surety bonds, performance bonds or similar obligations securing the performance of Borrower or any indebtedness evidenced by such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or any of its Subsidiaries;
(e) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal or similar obligations incurred in the ordinary course of business;
(f) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accounts;
(g) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees of and licensees to and of Borrower and its Subsidiaries;Securities; and
Appears in 1 contract
Indebtedness. (a) No Credit Loan Party shallshall create, incur, assume, endorse, be or be become liable for, or suffer to exist, nor shall it permit any of its Subsidiaries toto create, incur, assume, endorse, be or become liable for, or suffer to exist, any Indebtedness, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except:
(ai) Indebtedness and Contingent Obligations in respect of the ObligationsObligations or evidenced by a Loan Document;
(bii) liabilities in respect of taxes, and current liabilities in respect of assessments and governmental charges or levies incurred, or claims for labor, materials, inventory, services, supplies and rentals incurred, or for goods or services purchased, in the ordinary course of business materially consistent with the past practice of such Loan Party and its Subsidiaries, and Contingent Obligations in respect of indemnities under Contractual Obligations or owing to officers and directors of any Loan Party or its Subsidiaries, in each case to the extent not otherwise prohibited by the Loan Documents and not resulting in a Default or an Event of Default;
(iii) Indebtedness referred to in clause (k) of the definition of “Indebtedness”;
(iv) Indebtedness of any Operating Company or any Operating Company Subsidiary arising under any performance bond reimbursement obligation entered into consistent with the past practice of such Operating Company or such Operating Company Subsidiary;
(v) Indebtedness of any Operating Company or any Operating Company Subsidiary under Capital Financing Indebtedness (including any guaranty by any of the foregoing Loan Parties of any Capital Financing Indebtedness of a Subsidiary of such Loan Party) in an aggregate amount not exceeding $5,000,000 at any one time outstanding for all Operating Companies and all Operating Company Subsidiaries;
(vi) Intentionally Omitted;
(vii) Indebtedness of any Loan Party or its Subsidiaries in respect of any judgment, provided that the aggregate amount of all such Indebtedness of the Loan Parties and their Subsidiaries does not exceed $2,000,000 and no such judgment or judgments result in a Default or an Event of Default;
(viii) Indebtedness of the Loan Parties and their Subsidiaries solely resulting from changes in GAAP or the application of current GAAP to the extent not so applied on the date hereof;
(ix) in the case of Euramax, U.K. Holdings and Dutch Holdings, the Senior Subordinated Notes and, in the case of Amerimax U.K., Euramax U.S., Newco U.K., Newco U.K. II and U.S. Operating Co., the subordinated guaranties thereof pursuant to the Senior Subordinated Indenture;
(x) in the case of each of Amerimax U.K. and Dutch Company, the Indebtedness in respect of the Intercompany Notes issued by such Person;
(xi) Indebtedness of any Operating Company or any Operating Company Subsidiary to the extent such Indebtedness is existing on the date of this Agreement and the nature thereof, the parties thereto, the amount thereof and the documents therefor are specified on Schedule 7.2(a);
(xii) Indebtedness owing to other than a Loan Party by any Operating Company or any Operating Company Subsidiary not exceeding $5,000,000 in the aggregate at any time outstanding for all such Persons incurred for the purpose of funding working capital requirements of such Person or for general corporate purposes of such Person, provided that (A) the amount thereof incurred by French Operating Co. and its Subsidiaries shall not exceed in the aggregate $1,000,000 at any time outstanding and (B) no Indebtedness permitted by this clause (xii) shall be secured by a Lien on any property or assets of any Loan Party other than any such Indebtedness owing to National Westminster Bank plc by U.K. Operating Co., Ellbee Ltd. and/or Coated Products U.K. (including any guaranty by any such Loan Party of any such Indebtedness owing to National Westminster Bank plc by another such Loan Party) in an amount not exceeding $2,500,000 in the aggregate at any such time outstanding (“Permitted Secured U.K. Debt”) secured by Liens specifically permitted by Section 7.1(l), provided that no Default or Event of Default would result therefrom;
(xiii) (A) Indebtedness of an Operating Company or any Operating Company Subsidiary owing to any Operating Company, any Operating Company Subsidiary or any Subsidiary thereof; and (B) Indebtedness of French Operating Co. or a Subsidiary thereof owing to any other Operating Company or any other Operating Company Subsidiary, as the case may be, in an aggregate principal amount not exceeding, when added to exceed the amount of Indebtedness incurred by French Operating Co. and its Subsidiaries pursuant to clause (xii) above, $4,350,000,000;
(c) Indebtedness of 5,000,000 in the aggregate at any Subsidiary of Borrower to Borrower or any other such Subsidiary or of Borrower to any of its Subsidiariestime outstanding; provided provided, however, that (i) all such Indebtedness, if owed Indebtedness owing to a Credit Party, shall be Loan Party is evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien notes pledged pursuant to the applicable Collateral Document;
(xiv) Indebtedness of the Loan Parties (A) under Currency Contracts permitted under Section 7.11, provided that the aggregate notional amount of the obligations of all Loan Parties under such Currency Contracts shall not exceed $100,000,000 at any time (iiB) under Interest Rate Contracts permitted under Section 7.11, provided that the aggregate notional amount of the obligations of all Loan Parties under such Interest Rate Contracts shall not exceed $75,000,000 at any time and (C) under Commodity Hedge Contracts permitted under Section 7.11, provided that the aggregate notional amount of the obligations of all Loan Parties under such Commodity Hedge Contracts shall not exceed $50,000,000;
(xv) All Indebtedness owing between Loan Parties evidenced by a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment promissory note pledged to the payment in full of the Obligations Agent pursuant to the terms of a subordination agreement with respect to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties Domestic Pledge and such Subsidiaries party to such Indebtedness and (iii) in respect of any Indebtedness owing by a Subsidiary that is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d)Security Agreements;
(d) Indebtedness incurred by Borrower or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) or from guaranties or letters of credit, surety bonds, performance bonds or similar obligations securing the performance of Borrower or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or any of its Subsidiaries;
(e) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal or similar obligations incurred in the ordinary course of business;
(f) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accounts;
(g) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees of and licensees to and of Borrower and its Subsidiaries;
Appears in 1 contract
Indebtedness. No Credit Party shallParent and Company shall not, nor and shall it not permit any of its Company's Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to to, any Indebtedness, except:
(ai) Company may become and remain liable with respect to the Obligations;
(ii) Parent, Company and Company's Subsidiaries may become and remain liable with respect to Contingent Obligations permitted by subsection 7.4 and, upon any matured obligations actually arising pursuant thereto, the Indebtedness corresponding to the Contingent Obligations so extinguished;
(a) Company may become and remain liable with respect to Indebtedness to any of its Wholly-Owned Subsidiaries; (b) Senior Notes any Wholly- Owned Subsidiary of Company (other than BHFS Group) that prior to the Collateral Release Date is a Pledged Subsidiary or after the Collateral Release Date is a Wholly-Owned Domestic Subsidiary may become and remain liable with respect to Indebtedness to Company or any other Wholly-Owned Domestic Subsidiary of Company; (c) any Wholly-Owned Foreign Subsidiary that prior to the Collateral Release Date is a Pledged Subsidiary or after the Collateral Release Date is a Wholly-Owned Foreign Subsidiary of the Company may become and remain liable with respect to Indebtedness to any other Foreign Subsidiary of the Company; and (d) Persons in the BHFS Group may become and remain liable with respect to Indebtedness to Company in an aggregate principal amount which does not to exceed $4,350,000,000;
(c) Indebtedness of 5,000,000 outstanding at any Subsidiary of Borrower one time and to Borrower or any other Person in the BHFS Group; PROVIDED that (1) all such Subsidiary or intercompany Indebtedness shall be evidenced by promissory notes which notes (other than notes issued and payable to Foreign Subsidiaries) prior to the Collateral Release Date shall be pledged to Administrative Agent, on behalf of Borrower Lenders, as security for the Obligations, (2) all such intercompany Indebtedness owed by Company to any of its Subsidiaries; provided that (i) all Subsidiaries or by any of such Indebtedness, if owed Subsidiaries to a Credit Party, Company shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral Document, (ii) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement, in each case in form and substance satisfactory to Administrative Agent and its counsel, and (3) any payment by any Domestic Subsidiary of Company under the Subsidiary Guaranty shall result in a subordination agreement PRO TANTO reduction of the amount of any intercompany Indebtedness owed by such Subsidiary to Company or to any of its Subsidiaries for whose benefit such payment is made; PROVIDED further that the aggregate amount of all outstanding Indebtedness of Foreign Subsidiaries to Company and its Wholly-Owned Domestic Subsidiaries shall not exceed $25,000,000 at any time;
(iv) Company and its Domestic Subsidiaries (other than BHFS Group), as applicable, may remain liable with respect to unsecured Indebtedness described in SCHEDULE 7.1 annexed hereto;
(v) Parent may remain liable with respect to the Indebtedness evidenced by the 11-1/2% Senior Discount Debentures; PROVIDED that Parent within the time period permitted by the 11-1/2% Senior Discount Debenture Indenture shall have called for redemption and shall have redeemed 11-1/2% Senior Discount Debentures from not less than $95,000,000 in proceeds from the Common Stock Offering and Parent shall commence a tender offer for its 11-1/2% Senior Discount Debentures in accordance with the provisions of subsection 7.13D;
(vi) Company and its Wholly-Owned Subsidiaries (other than BHFS Group) may become and remain liable with respect to Indebtedness incurred or assumed in connection with an Acquisition permitted under subsection 7.7(iv) PROVIDED that the proceeds of any such incurred Indebtedness substantially are applied to make Acquisition Expenditures permitted under subsection 7.7(iv);
(vii) Company may remain liable with respect to the Indebtedness evidenced by the Senior Notes and the 10-3/4% Subordinated Notes PROVIDED that Company calls its 10 3/4% Subordinated Notes for redemption in accordance with the form provisions of Exhibit J-2 among subsection 7.13A; and the Credit Parties Company may incur and remain liable with respect to unsecured Indebtedness incurred to refinance the Senior Notes and/or the outstanding amount of any Debt Repurchases related to redemptions or repurchases of Senior Notes; PROVIDED that (a) the aggregate principal amount of such Subsidiaries party to such refinancing Indebtedness and any outstanding Senior Notes shall not exceed $100,000,000; (iiib) in respect the weighted average life to maturity of such refinancing Indebtedness shall be no shorter than 180 days after the Commitment Termination Date; and (c) the terms and conditions of any such refinancing Indebtedness owing and any guarantees of such refinancing Indebtedness are no less favorable to the Lenders than the terms and conditions of the Senior Notes or are as otherwise approved by a Subsidiary that is not a Credit Party Requisite Lenders;
(viii) Company's Foreign Subsidiaries may become and remain liable with respect to a Credit PartyForeign Financial Accommodations in an aggregate amount which, such together with the aggregate outstanding amount of receivables sold by Foreign Subsidiaries permitted under subsection 7.9(a), the aggregate amount of assumed Indebtedness is permitted as an Investment outstanding which Company elects under the proviso to Section 6.6(dclause (vi)(c) hereof to apply against this clause (viii) and the aggregate amount of outstanding Contingent Obligations permitted under subsection 7.4(xi), shall not exceed $80,000,000 at any time outstanding;
(dix) BHFS Group may become and remain liable with respect to Indebtedness incurred by Borrower or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) or from guaranties or letters of credit, surety bonds, performance bonds or similar obligations securing the performance of Borrower or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or any of its Subsidiariesthat is Non-Recourse Debt;
(ex) Company and its Domestic Subsidiaries (other than BHFS Group) may become and remain liable with respect to other Indebtedness in an aggregate principal amount, which may be deemed to exist pursuant to together with outstanding Contingent Obligations permitted under subsection 7.4(xiii), does not exceed $25,000,000 at any guaranties, performance, surety, statutory, appeal or similar obligations incurred in the ordinary course of businesstime outstanding;
(fxi) Indebtedness Company and its Subsidiaries may become and remain liable with respect to Capital Leases in respect an amount not exceeding $10,000,000 and other Capital Leases permitted under clauses (vi) or (x) of netting services, overdraft protections and otherwise in connection with deposit accountsthis subsection 7.1;
(gxii) guaranties the Canadian Receivables Division may become and remain liable with respect to Indebtedness that is Non-Recourse Debt in an aggregate amount which, together with the ordinary course aggregate outstanding receivables sold as permitted under subsection 7.9(c) by the Canadian Receivables Division, does not exceed $15,000,000 at any time outstanding; and
(xiii) Company may become and remain liable with respect to Subordinated Indebtedness up to a maximum aggregate principal amount of business $200,000,000, the terms and conditions of such Subordinated Indebtedness and of any guarantees of such Subordinated Indebtedness to be subject to the approval of the obligations Requisite Lenders which approval shall not be unreasonably withheld; PROVIDED that after giving effect to the incurrence of supplierssuch Indebtedness, customers, franchisees of and licensees Company's total Indebtedness shall not exceed the permitted Leverage Ratio pursuant to and of Borrower and its Subsidiaries;subsection 7.6B.
Appears in 1 contract
Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except:
(a) the Obligations;
(b) Senior Notes in an aggregate principal amount not to exceed $4,350,000,000;
(c) Indebtedness of any Subsidiary of Borrower Company to Borrower or any other such Subsidiary or of Borrower to any of its SubsidiariesCompany; provided that provided, (i) all such Indebtedness, if owed to a Credit Party, Indebtedness shall be evidenced by the Intercompany Note or another promissory note notes and all such notes shall be subject to a First Priority Lien pursuant to the applicable Collateral DocumentPledge and Security Agreement, (ii) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of a the applicable promissory notes or an intercompany subordination agreement with respect that in any such case, is reasonably satisfactory to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness Administrative Agent, and (iii) any payment by any such Company under any guaranty of the Obligations shall result in respect a pro tanto reduction of the amount of any Indebtedness owing owed by a such Subsidiary that to Company or to any of its Subsidiaries for whose benefit such payment is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under made;
(c) the proviso to Section 6.6(d)Subordinated Indebtedness;
(d) Indebtedness incurred by Borrower any Company or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) indemnification or from guaranties or letters of credit, surety bonds, bonds or performance bonds or similar obligations securing the performance of Borrower any Company or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower Holdings or any of its Subsidiaries;
(e) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, statutory or appeal bonds or similar obligations incurred in the ordinary course of business;
(f) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accountsaccounts incurred in the ordinary course of business;
(g) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees of and licensees to and of Borrower any Company and its Subsidiaries;
(h) guaranties by any Company of Indebtedness of another Company or guaranties by a Subsidiary of any Company of Indebtedness of such Company with respect, in each case, to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.1; provided, that if the Indebtedness that is being guarantied is unsecured and/or subordinated to the Obligations, the guaranty shall also be unsecured and/or subordinated to the Obligations;
(i) Indebtedness of any Company outstanding as of the Closing Date and described in Schedule 6.1, but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement, and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(j) Indebtedness incurred by any Company in an aggregate amount not to exceed at any time $2,000,000 with respect to (x) Capital Leases and (y) purchase money Indebtedness (including any such Indebtedness acquired in connection with a Permitted Acquisition); provided, in the case of clause (x), that any such Indebtedness shall be secured only by the asset subject to such Capital Lease, and, in the case of clause (y), that any such Indebtedness shall (i) be secured only by the asset acquired in connection with the incurrence of such Indebtedness and (ii) constitute not less than 85% of the aggregate consideration paid with respect to such asset;
(k) unsecured Indebtedness arising under credit card or purchase card programs incurred directly by, or guaranteed by, the Companies or their Subsidiaries in an aggregate amount not to exceed $5,000,000 at any one time outstanding;
(l) Indebtedness owing to insurance companies consisting of unpaid insurance premiums (not in excess of one year’s premium) of any Credit Party in the ordinary course of business;
(m) Indebtedness of the Companies and their Subsidiaries incurred under the Lowes Factoring Agreement consisting of the obligation to repurchase certain accounts receivable sold thereunder in Permitted Receivables Sales in an aggregate amount not to exceed $7,500,000 at any time;
(n) Indebtedness of the Companies and their Subsidiaries incurred under the Wal-Mart Factoring Agreement consisting of the obligation to repurchase certain accounts receivable sold thereunder in Permitted Receivables Sales in an amount not to exceed $7,500,000 at any time;
(o) Swap Obligations existing under any Interest Rate Agreements; and
(p) other unsecured Indebtedness of any Company and its Subsidiaries other than the types listed in Section 6.1(a) – (o), which is unsecured and subordinated to the Obligations in a manner satisfactory to Administrative Agent in an aggregate amount not to exceed at any time $500,000. No Credit Party shall, nor shall it permit any of its Subsidiaries to, issue any Capital Stock other than Qualified Capital Stock. Without limiting the foregoing, no Credit Party shall permit Glacier Trust to issue any additional Trust Preferred Securities or other securities. To the extent any other Capital Stock of the issuing Credit Party or Subsidiary is pledged to secure the Obligations, such additional Capital Stock shall also be pledged to secure the Obligations pursuant to the Pledge and Security Agreement.
Appears in 1 contract
Indebtedness. No Credit Party shallCompany shall not, nor and shall it not permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to to, any Indebtedness, except:
(ai) Company may become and remain liable with respect to the Obligations;
(bii) Senior Notes in an aggregate principal amount not Company and its Subsidiaries may become and remain liable with respect to exceed $4,350,000,000Contingent Obligations permitted by subsection 7.4 and, upon any matured obligations actually arising pursuant thereto, the Indebtedness corresponding to the Contingent Obligations so extinguished;
(ciii) Company and its Subsidiaries may become and remain liable with respect to Indebtedness in respect of any Subsidiary of Borrower Capital Leases;
(iv) Company may become and remain liable with respect to Borrower or any other such Subsidiary or of Borrower Indebtedness to any of its Wholly-Owned North American Subsidiaries, and any Wholly-Owned North American Subsidiary of Company may become and remain liable with respect to Indebtedness to Company or any other Wholly-Owned North American Subsidiary of Company; provided that (ia) all such Indebtedness, if owed to a Credit Party, intercompany Indebtedness shall be evidenced by the an Intercompany Note or another promissory note and shall be subject that is pledged to a First Priority Lien Collateral Agent pursuant to the terms of the applicable Collateral Document, ; (iib) all such intercompany Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the Intercompany Notes; (c) any payment by any Wholly-Owned North American Subsidiary of Company under any guaranty of the Obligations shall result in a subordination agreement pro tanto reduction of the amount of any intercompany Indebtedness owed by such Wholly-Owned North American Subsidiary to Company or to any of its Wholly-Owned North American Subsidiaries for whose benefit such payment is made; and (d) in the case of Indebtedness of Canadian Borrower and/or any of its Wholly-Owned North American Subsidiaries to Company or any of its Wholly-Owned North American Subsidiaries (other than Canadian Borrower and its North American Subsidiaries), such intercompany Indebtedness is secured by Third Priority Liens on all of the assets of Canadian Borrower and its Wholly-Owned Subsidiaries, which Third Priority Liens are (1) granted pursuant to documentation reasonably satisfactory in form and substance to Collateral Agent and its counsel and (2) collaterally assigned to Collateral Agent for the benefit of Lenders pursuant to the applicable Collateral Document.
(v) Company and its Subsidiaries may become and remain liable with respect to such Indebtedness substantially secured by Liens permitted under subsection 7.2A(iii); provided that the aggregate amount of Indebtedness permitted under this subsection 7.1(v) outstanding at any time shall not exceed US$20,000,000 or the Equivalent Amount in any other currency;
(vi) Company and its Subsidiaries may remain liable with respect to Indebtedness existing on the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness and (iii) Closing Date set forth in respect of any Indebtedness owing by a Subsidiary that is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(dSchedule 7.1(vi);
(dvii) Company and its Wholly-Owned North American Subsidiaries may become and remain liable with respect to Indebtedness incurred by Borrower of a Person existing at the time such 112 Person is merged into or consolidated with Company or any Wholly-Owned North American Subsidiary of its Subsidiaries arising from agreements providing for indemnification, adjustment Company or becomes a Wholly-Owned North American Subsidiary of purchase price or similar obligations (including Company; provided that such Indebtedness consisting of the deferred purchase price of property acquired was not incurred in a Permitted Acquisition) or from guaranties or letters of credit, surety bonds, performance bonds or similar obligations securing the performance of Borrower or any such Subsidiary pursuant to such agreementsconnection with, in connection contemplation of, or with Permitted Acquisitions the purpose of financing such merger, consolidation or acquisition; provided, further, that Company can demonstrate in form and substance satisfactory to US Administrative Agent that, immediately before and after giving effect to the incurrence of such Indebtedness, (a) Company is in compliance on a pro forma basis with all covenants set forth in Section 7 of this Agreement and (b) there is no Potential Event of Default or Event of Default; provided, still further, that the aggregate amount of Indebtedness permitted dispositions of under this subsection 7.1(vii) outstanding at any business, assets time shall not exceed US$20,000,000 or Subsidiary of Borrower or the Equivalent Amount in any of its Subsidiariesother currency;
(eviii) Company and its Subsidiaries may become and remain liable with respect to other Indebtedness which may be deemed in an aggregate principal amount not to exist pursuant to exceed US$5,000,000 at any guaranties, performance, surety, statutory, appeal or similar obligations incurred in the ordinary course of businesstime outstanding;
(fix) Indebtedness non-Wholly-Owned Subsidiaries of Company may become and remain liable with respect to Investments by the Company and its Wholly-Owned Subsidiaries in respect such non-Wholly-Owned Subsidiaries of netting services, overdraft protections and otherwise in connection with deposit accountsCompany to the extent permitted by subsection 7.3A(viii)(a);
(gx) guaranties Company and its Subsidiaries may become and remain liable with respect to the Restructured Term Loans in the ordinary course original principal amount of business US$679,932,498.68 owing under the Term Loan Agreement;
(xi) if Company exercises its Cure Rights pursuant to subsection 7.6C, Company may become and remain liable with respect to Indebtedness under Permitted Cure Securities; and
(xii) Off-Balance Sheet Subsidiaries may become and remain liable with respect to Indebtedness used solely to finance Off-Balance Sheet Capital Expenditures.
(xiii) Company may issue Subordinated Indebtedness; provided that the proceeds of such Subordinated Indebtedness are used as a mandatory prepayment and/or mandatory reduction of the obligations of suppliers, customers, franchisees of and licensees Revolving Loan Commitments pursuant to and of Borrower and its Subsidiaries;subsection 2.4B(iii).
Appears in 1 contract
Sources: Priority Secured Credit Agreement (Loews Cineplex Entertainment Corp)
Indebtedness. No Credit Party shallThe Company shall not, nor and shall it not permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except:
(a) the Obligations;
(b) Senior Notes in an aggregate principal amount not to exceed $4,350,000,000;
(c) Indebtedness of any Guarantor Subsidiary of Borrower to Borrower the Company or to any other such Subsidiary Guarantor Subsidiary, or of Borrower the Company to any of its SubsidiariesGuarantor Subsidiary; provided that provided, (i) all such Indebtedness, if owed to a Credit Party, Indebtedness shall be evidenced by the Intercompany Note or another promissory note notes and all such notes shall be subject to a First Second Priority Lien pursuant to the applicable Collateral DocumentPledge and Security Agreement, (ii) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of a any applicable promissory notes or an intercompany subordination agreement with respect that in any such case, is reasonably satisfactory to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness Administrative Agent, and (iii) any payment by any such Guarantor Subsidiary under any guaranty of the Obligations shall result in respect a pro tanto reduction of the amount of any Indebtedness owing owed by a such Subsidiary that to the Company or to any of its Subsidiaries for whose benefit such payment is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment made;
(c) The loans made on the Closing Date under the proviso to Section 6.6(d)First Lien Credit Facilities;
(d) Indebtedness incurred by Borrower Holdings or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) obligations, or from guaranties or letters of credit, surety bonds, bonds or performance bonds or similar obligations securing the performance of Borrower the Company or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower Holdings or any of its Subsidiaries;
(e) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal or similar obligations incurred in the ordinary course of business;
(f) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accounts;
(g) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees of and licensees to and of Borrower the Company and its Subsidiaries;
(h) guaranties by the Company of Indebtedness of a Guarantor Subsidiary or guaranties by a Subsidiary of the Company of Indebtedness of the Company or a Guarantor Subsidiary with respect, in each case, to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.1;
(i) Indebtedness described in Schedule 6.1, but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(j) Indebtedness with respect to (i) Capital Leases and (ii) purchase money Indebtedness (including any purchase money Indebtedness acquired in connection with a Permitted Acquisition) in an aggregate amount not to exceed at any time $8,500,000; provided, that any such Indebtedness as described in clause (ii) above (x) shall be secured only to the asset acquired in connection with the incurrence of such Indebtedness, and (y) shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(k) prior to 60 Business Days after the Closing Date, Indebtedness with respect to the Existing Subordinated Notes in an amount not to exceed the Unpaid Refinancing Amount;
(l) Indebtedness (not relating to the borrowing of money) incurred to finance insurance premiums in the ordinary course of business;
(i) Indebtedness of a Credit Party owed to any Foreign Subsidiary of Holdings, provided that all such Indebtedness shall be (x) evidenced by a promissory note reasonably satisfactory to Administrative Agent and (y) unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to an intercompany subordination agreement reasonably satisfactory to the Administrative Agent and (ii) Indebtedness of any Foreign Subsidiary of Holdings owed to any Credit Party to the extent that the aggregate amount of such Indebtedness (other than Indebtedness as permitted in Section 6.8(h)), when aggregated with all Investments pursuant to Section 6.6(j), does not exceed $12,000,000 at any time; provided that all such Indebtedness shall be evidenced by a promissory note reasonably satisfactory to Administrative Agent all such notes shall be subject to a Second Priority Lien pursuant to the Pledge and Security Agreement;
(i) Indebtedness of any Foreign Subsidiary of Holdings, consisting of local lines of credit incurred in the ordinary course of business of such Foreign Subsidiary and (ii) guaranties by the Company or a Guarantor Subsidiary of the Indebtedness of a Foreign Subsidiary of Holdings (which Indebtedness is otherwise permitted hereunder) in an aggregate amount not to exceed at any time $14,500,000;
(o) unsecured Indebtedness in an aggregate outstanding amount not to exceed $3,000,000 at any time consisting of repurchase obligations with respect to Capital Stock issued to directors, officers and employees arising upon the death, disability or termination of employment of such director, officer or employee, in each case, on terms and provisions reasonably satisfactory to the Administrative Agent;
(p) guaranties by the Company or a Guarantor Subsidiary of loans and advances permitted by Section 6.6(f);
(q) Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business;
(r) Holdings Permitted Refinancing Indebtedness in an aggregate principal amount not to exceed the aggregate principal face amount of the Existing Exchangeable Preferred Stock on the Closing Date (after giving effect to the Recapitalization) plus any accumulated unpaid dividends in arrears, accrued dividends and other similar amounts plus the amount of necessary fees and expenses incurred in connection therewith and any premiums paid on the Existing Exchangeable Preferred Stock that is repaid; and
(s) other unsecured Indebtedness of the Company and its Subsidiaries, in an aggregate amount not to exceed at any time $5,000,000.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Day International Group Inc)
Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except:
(a) the Obligations;
(b) Senior Notes in an aggregate principal amount not to exceed $4,350,000,000;
(ci) Indebtedness of any Guarantor Subsidiary of Borrower to Borrower Company or to any other such Subsidiary Guarantor Subsidiary, or of Borrower Company to any of its SubsidiariesGuarantor Subsidiary; provided that PROVIDED, (iA) all such Indebtedness, if owed to a Credit Party, Indebtedness shall be evidenced by the Intercompany Note or another promissory note notes and all such notes shall be subject to a First Priority Lien pursuant to the applicable Collateral DocumentPledge and Security Agreement, (iiB) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms and conditions of the applicable promissory notes or the Intercompany Subordination Agreement, and (C) any payment by any Guarantor Subsidiary under any guaranty of the Obligations shall result in a subordination agreement pro tanto reduction of the amount of any such Indebtedness owed by such Guarantor Subsidiary to Company or to any of its Guarantor Subsidiaries for whose benefit such payment is made; (ii) Indebtedness of any Foreign Subsidiary to Company or any Guarantor Subsidiary, PROVIDED, (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a First Priority Lien pursuant to the Pledge and Security Agreement and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms and conditions of the applicable promissory notes or an Intercompany Subordination Agreement; (iii) Indebtedness of any Foreign Subsidiary to any other Foreign Subsidiary and (iv) Indebtedness between Company and Holdings arising as a result of Restricted Junior Payments permitted under Section 6.5(d);
(c) Company and its Guarantor Subsidiaries may become and remain liable with respect to (i) Senior Subordinated Notes in an aggregate principal amount not to exceed $350,000,000 at any time outstanding under the Senior Subordinated Note Indenture; (ii) additional Subordinated Indebtedness the proceeds of which (net of reasonable costs and expenses associated therewith) are used to repay the Loans pursuant to Section 2.15(d), PROVIDED, the terms and conditions of such Subordinated Indebtedness substantially (including the terms and conditions of any guarantees of or other credit support for such Indebtedness) are not less favorable in any material respect to Company and its Subsidiaries, the form Agents or the Lenders than the terms and conditions of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness Senior Subordinated Notes; and (iii) in respect extensions, renewals, refinancings or replacements of the Subordinated Indebtedness permitted under clauses (i) and (ii), PROVIDED, such extensions, renewals, refinancings or replacements (A) are on terms and conditions (including the terms and conditions of any guarantees of or other credit support for such Indebtedness) not less favorable in any material respect to Company and its Subsidiaries, the Agents or the Lenders than the terms and conditions of the Indebtedness owing by a Subsidiary that is being extended, renewed, refinanced or replaced, (B) do not a Credit Party to a Credit Party, such Indebtedness is permitted add as an Investment obligor any Person that would not have been an obligor under the proviso Indebtedness being extended, renewed, replaced or refinanced, (C) do not result in a greater principal amount or shorter remaining average life to Section 6.6(d)maturity than the Indebtedness being extended, renewed, replaced or refinanced and (D) are not effected at any time when a Default or Event of Default has occurred and is continuing or would result therefrom;
(d) Indebtedness incurred by Borrower or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) or from guaranties or letters of credit, surety bonds, performance bonds or similar obligations securing the performance of Borrower or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or any of its Subsidiaries;
(e) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal or similar obligations incurred in the ordinary course of business;
(f) Indebtedness in respect of (i) netting services, overdraft protections and otherwise in connection with endorsements of checks and other negotiable instruments and deposit accountsaccounts incurred in the ordinary course of business; (ii) workers' compensation claims, self-insurance obligations, performance, surety, release, appeal and similar bonds and completion guarantees incurred in the ordinary course of business of Company and its Subsidiaries and any reimbursement obligations in respect of the foregoing; and (iii) indemnification obligations or obligations in respect of purchase price adjustments or similar obligations incurred or assumed by Company and its Subsidiaries in connection with an Asset Sale or sale of Capital Stock of Holdings otherwise permitted under this Agreement;
(ge) guaranties in the ordinary course of business of Company and its Subsidiaries of the obligations of suppliers, customers, franchisees of and licensees to and of Borrower Holdings and its Subsidiaries;
(f) guaranties by Holdings or Company of Indebtedness of a Guarantor Subsidiary or guaranties by a Subsidiary of Company of Indebtedness of Company or a Guarantor Subsidiary with respect, in each case, to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.1;
(g) Indebtedness described in Schedule 6.1(g), and not exceeding the aggregate principal amount indicated therein (the "SURVIVING INDEBTEDNESS") and, solely in the case of the Surviving Capital Leases and Surviving IRBs, any extensions, renewals, refinancings or replacements thereof, PROVIDED, such extensions, renewals, refinancings or replacements (i) are on terms and conditions (including the terms and conditions of any guarantee or other credit support for such Indebtedness) not less favorable in any material respect to Company and its Subsidiaries, the Agents or the Lenders than the terms and conditions of the Indebtedness being extended, renewed, refinanced or replaced, (ii) do not add as obligor any Person that would not have been an obligor under the Indebtedness being extended, renewed, replaced or refinanced, (iii) do not result in a greater principal amount or shorter remaining average life to maturity than the Indebtedness being extended, renewed, replaced or refinanced and (iv) are not effected at any time when a Default or Event of Default has occurred and is continuing or would result therefrom;
(h) Indebtedness with respect to Capital Leases (in addition to any Surviving Capital Leases), including Capital Leases acquired in connection with Permitted Acquisitions, in an aggregate amount at any time outstanding not to exceed the sum of (i) $10,000,000 PLUS (ii) the excess, if any, of (A) the aggregate amount of Surviving Capital Leases outstanding as of the Closing Date over (B) the aggregate amount of Surviving Capital Leases and any extensions, renewals, refinancings or replacements thereof made in accordance with the proviso of Section 6.1(g) outstanding as of the date of determination;
(i) Indebtedness of Foreign Subsidiaries (to Persons other than Company or its Subsidiaries) in an aggregate amount not to exceed $5,000,000 at any time outstanding;
(j) purchase money Indebtedness in an aggregate amount not to exceed $10,000,000 at any time outstanding (excluding any such Indebtedness of a Person acquired in connection with a Permitted Acquisition); PROVIDED, any such Indebtedness (i) shall be secured only by assets acquired in connection with the incurrence of such Indebtedness, and (ii) shall constitute not less than 90% of the aggregate consideration paid with respect to such asset;
(i) Indebtedness (other than Capital Leases) of any Person that becomes a Guarantor Subsidiary after the date hereof pursuant to a Permitted Acquisition (including purchase money Indebtedness of such Person), which Indebtedness exists at the time such Person becomes a Subsidiary and is not created in contemplation of, or in connection with, such Person becoming a Subsidiary; and (ii) any extensions, renewals, refinancings or replacements of such Indebtedness which extensions, renewals, refinancings or replacements (A) are on terms and conditions (including the terms and conditions of any guarantee or other credit support for such Indebtedness) not less favorable in any material respect to Company and its Subsidiaries or the Lenders than the terms and conditions of the Indebtedness being extended, renewed, refinanced or replaced and, (B) do not add as obligor any Person that would not have been an obligor under the Indebtedness being extended, renewed, replaced or refinanced, (C) do not result in a greater principal amount or shorter remaining average life to maturity than the Indebtedness being extended, renewed, replaced or refinanced and (D) are not effected at any time when a Default or Event of Default has occurred and is continuing or would result therefrom; PROVIDED, the aggregate amount of Indebtedness described in clauses (i) and (ii) does not exceed $10,000,000 at any time outstanding;
(l) Indebtedness with respect to Financial Hedge Agreements;
(m) senior unsecured Indebtedness of Holdings to rank PARI PASSU with Holdings' Obligations under its Guaranty, in an aggregate principal amount not to exceed $50,000,000 at any time outstanding; PROVIDED, the Administrative Agent is satisfied that the terms and conditions of such Indebtedness (A) provide that there shall be no payment (whether in Cash or other assets or property, other than payments-in-kind) of principal, interest, fees, expenses or other amounts by Holdings out of the assets or estate of Holdings or any of its Subsidiaries (other than as a consequence of any acceleration or event of default) at any time prior to the payment in full of the Obligations, (B) do not create rights or remedies enforceable against Company or any of its Subsidiaries, (C) do not provide for covenants, restrictions or limitations on Holdings in respect of Company and its Subsidiaries, or Events of Default relating to Company and its Subsidiaries, in each case, that are more restrictive in any material respect than the analogous provisions of the Senior Subordinated Notes and (D) provide for a final maturity after the final maturity of any Loan then outstanding or committed to be lent hereunder; PROVIDED, FURTHER, 100% of the proceeds of such Indebtedness (net of reasonable costs and expenses associated therewith, including reasonable fees and expenses of professional advisors) are contributed as equity capital to Company;
(n) other Indebtedness of Holdings and its Guarantor Subsidiaries, which is unsecured and subordinated to the Obligations in a manner satisfactory to Administrative Agent in an aggregate amount not to exceed $10,000,000 at any time outstanding.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Berry Plastics Corp)
Indebtedness. No Credit Loan Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, indirectly create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, exceptIndebtedness except for the following:
(a) the Obligations;
(b) Senior Notes in an aggregate principal amount not to exceed $4,350,000,000;
(c) Indebtedness of any Subsidiary Guarantor to the Borrowers or to any other Guarantor, or of any Borrower to Holdings or to any other Guarantor, or of Holdings to any Borrower or any other such Subsidiary or of Borrower to any of its SubsidiariesGuarantor; provided that provided, (i) all if such Indebtedness, if owed to a Credit Party, Indebtedness shall be evidenced by the Intercompany Note or another promissory note and notes, all such notes shall be subject to a First Priority Lien pledged pursuant to the applicable Collateral DocumentPledge and Security Agreement, (ii) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of a any applicable promissory notes or an intercompany subordination agreement with respect that in any such case, is reasonably satisfactory to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness Administrative Agent, and (iii) the Borrowers and the Subsidiary Guarantors shall not be permitted to make any payments to Holdings in respect of any such Indebtedness owing to Holdings unless such payments would be expressly permitted to be made, if made by way of a Subsidiary that is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso dividend or other Restricted Payment pursuant to Section 6.6(d)8.5;
(dc) Indebtedness incurred by Borrower Holdings or any of its Subsidiaries arising from agreements providing for indemnification, earn-outs, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) obligations, or from guaranties or letters of credit, surety bonds, bonds or performance bonds or similar obligations securing the performance of Borrower Holdings or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions Asset Sale of any business, assets or Subsidiary of Borrower Holdings or any of its SubsidiariesSubsidiaries permitted hereunder;
(ed) Indebtedness which may be deemed to exist pursuant to any worker’s compensation claims, self-insurance obligations, guaranties, performance, surety, statutory, appeal appeal, custom bonds or similar obligations incurred in the ordinary course of business;
(f) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accounts;
(g) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees of and licensees to and of Borrower and its Subsidiaries;; AMENDED AND RESTATED CREDIT AGREEMENT
Appears in 1 contract
Sources: Credit Agreement (J Crew Group Inc)
Indebtedness. No Credit Party shallParent will not, nor shall it and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, guaranty or otherwise become or remain directly or indirectly liable with respect to any IndebtednessIndebtedness for borrowed money (including in the form of Disqualified Stock), exceptexcept for:
(a) Priority Lien Debt of a Loan Party and any Guarantees of a Loan Party in respect thereof; provided that any Priority Lien Debt shall (i) not be secured other than as permitted by clause (1) of the definition of Permitted Liens and (ii) not be subject to or benefit from any Guarantee by any Person that does not also Guarantee the Obligations; provided, further, that any Priority Lien Debt (other than any Priority Lien Debt incurred in the form of revolving Indebtedness pursuant to clause (b) of the definition thereof, which may be senior or superpriority in right of payments from the Collateral to the Obligations) shall be pari passu in right of payment with the Obligations;
(b) Senior Notes Junior Lien Indebtedness of the Loan Parties and any Guarantees of a Loan Party in respect thereof; provided that either (i) such Junior Lien Indebtedness is Permitted Refinancing Indebtedness in respect of Priority Lien Debt, (ii) after giving Pro Forma Effect to the issuance or incurrence of any such Junior Lien Indebtedness, the Total Asset Coverage Ratio is at least equal to [*] or (iii) such Junior Lien Indebtedness is Permitted Refinancing Indebtedness in respect of any Indebtedness incurred pursuant to clause (i) or (ii) above (or any successive Permitted Refinancing Indebtedness); provided, further, that any Junior Lien Indebtedness shall not be secured other than as permitted by clause (2) of the definition of Permitted Liens; provided further that in the event such Indebtedness being Guaranteed is subordinated in right of payment to the Loans, then the related Guarantee shall be subordinated in right of payment to the Loans or the Guarantees guaranteeing the Loans, as the case may be;
(c) unsecured Indebtedness of the Loan Parties that is Permitted Refinancing Indebtedness in respect of either Priority Lien Debt or Junior Lien Indebtedness (or any successive Permitted Refinancing Indebtedness) and any Guarantees of a Loan Party in respect of any of the foregoing; provided that (i) such Indebtedness shall not be subject to or benefit from any Guarantee by any Person that does not also Guarantee the Obligations, (ii) such Indebtedness shall be pari passu in right of payment with the Obligations or subordinated in right of payment with the Obligations, with any such subordinated obligation on terms reasonably satisfactory to the Administrative Agent and (iii) in the event such Indebtedness being Guaranteed is subordinated in right of payment to the Loans, then the related Guarantee shall be subordinated in right of payment to the Loans or the Guarantees guaranteeing the Loans, as the case may be;
(d) unsecured Indebtedness of Parent; provided that such Indebtedness (i) is subordinated in right of payment to the Obligations, any other Priority Lien Debt and any Junior Lien Indebtedness on terms reasonably satisfactory to the Administrative Agent, (ii) matures no earlier than the Latest Maturity Date in effect at the time of incurrence of such Indebtedness, (iii) has a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans outstanding hereunder with the longest Weighted Average Life to Maturity at the time of incurrence of such Indebtedness and (iv) is not subject to any Guarantee by any Subsidiary or Affiliate of Parent;
(e) unsecured Indebtedness of Parent and its Restricted Subsidiaries in an aggregate principal amount not to exceed $4,350,000,000;
(c) Indebtedness of [*] at any Subsidiary of Borrower to Borrower or any other such Subsidiary or of Borrower to any of its Subsidiariestime outstanding; provided that (i) all up to [*] of such Indebtedness, if owed unsecured Indebtedness may be used to a Credit Party, shall be evidenced by the Intercompany Note or another promissory note incur Indebtedness for borrowed money and shall be subject to a First Priority Lien pursuant to the applicable Collateral Document, (ii) all up to [*] of such unsecured Indebtedness owing by a Credit Party to a Subsidiary may be used for working capital purposes; provided 117 further that is not a Credit Party shall be unsecured and subordinated in right the outstanding amount of payment to the payment in full of the Obligations Indebtedness incurred pursuant to the terms of a subordination agreement this Section 6.02(e), together with respect to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness and (iii) in respect of any Indebtedness owing by a Subsidiary that is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso outstanding pursuant to Section 6.6(d6.02(i), does not exceed [*];
(df) Indebtedness incurred by Borrower or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) or from guaranties or letters of credit, bank guarantees, bankers’ assurances or acceptances, surety bonds, performance insurance bonds or and similar obligations securing the performance of Borrower or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or any of its Subsidiaries;
(e) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal or similar obligations incurred instruments entered into in the ordinary course of business;
(fg) Hedging Obligations in respect of Hedging Agreements that are not for speculative purposes;
(h) Indebtedness of Parent or any Restricted Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including sale and lease back transactions, 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) such Indebtedness is incurred in connection with such sale and lease back prior to or within 180 days after such acquisition or the completion of such construction or improvement and (ii) the aggregate principal amount of Indebtedness permitted by this Section 6.02(h) shall not exceed the greater of [*];
(i) Indebtedness incurred by Receivables Subsidiaries pursuant to Qualified Receivables Transactions; provided that the outstanding amount of Indebtedness incurred pursuant to this Section 6.02(i), together with Indebtedness outstanding pursuant to Section 6.02(e) does not exceed [*].
(j) Indebtedness incurred in connection with any Aircraft Financing (including, without limitation, the RCF Loan Agreement and the Spare Engine Loan Agreement);
(k) Indebtedness of Parent and its Restricted Subsidiaries with respect to infrastructure projects consistent with past practice; provided that (i) the Indebtedness incurred pursuant to this Section 6.02(k) shall not exceed the value of the collateral pledged in connection therewith and (ii) no Significant Assets shall be pledged to secure any such Indebtedness;
(l) Indebtedness issued in connection with the Reorganization Plan and Permitted Refinancing Indebtedness in respect of netting servicesthereof, overdraft protections and otherwise including the Junior DIP Facility; provided that the Junior DIP Facility shall be repaid in connection with deposit accountsfull on the Conversion Date;
(gm) guaranties unsecured Guarantees of (i) Indebtedness for borrowed money permitted by this Section 6.02 or (ii) other Indebtedness not constituting Indebtedness for borrowed money; provided that such Guarantee of such Indebtedness is not prohibited by the terms of this Agreement; provided, further, that in the ordinary course event such Indebtedness being guaranteed is subordinated to the Loans, then the related Guarantee shall be subordinated in right of business payment to the Loans or the Guarantees guaranteeing the Loans, as the case may be;
(n) intercompany Indebtedness among Parent and its Restricted Subsidiaries; provided that
(i) any such Indebtedness owing by a Loan Party shall be subordinated to the Obligations pursuant to an Intercompany Note or otherwise on terms reasonably satisfactory to the Administrative Agent and (ii) any such Indebtedness (A) owing to a Loan Party by another Loan Party or (B) owing to a Loan Party by a Restricted Subsidiary that is not a Loan Party if such Indebtedness under this clause (B) owing by such Restricted Subsidiary that is not a Loan Party is [*] or more in the aggregate, shall be evidenced by an Intercompany Note pursuant to the provisions contained therein and (iii) any such Indebtedness owing to a Loan Party shall be pledged pursuant to the Pledge and Security Agreement; and 118
(o) Indebtedness incurred by Parent or any Restricted Subsidiary which, as of the obligations Closing Date, (i) relates to any allowed claim in the Chapter 11 Cases and/or (ii) relates to any timely filed claim in the Chapter 11 Cases that is not yet allowed or disallowed; provided that Parent and/or such Restricted Subsidiary is resolving such claim in accordance with the Reorganization Plan, the Revised Claims Procedures Order and/or any other order of suppliersthe Bankruptcy Court. For the avoidance of doubt, customersa permitted refinancing in respect of Indebtedness incurred pursuant to a Dollar-denominated basket shall not increase capacity to incur Indebtedness under such Dollar- denominated basket, franchisees and such Dollar-denominated basket shall be deemed to continue to be utilized by the amount of the original Indebtedness incurred unless and licensees until the Indebtedness incurred to and of Borrower and its Subsidiaries;effect such permitted refinancing is no longer outstanding.
Appears in 1 contract
Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectlyIncur, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable permit to exist any Indebtedness (other than intercompany current liabilities incurred in the ordinary course of business in connection with respect to any Indebtednessthe cash management operations of the Company and its subsidiaries), except:
(a) (i) Indebtedness (other than under letters of credit) existing on the ObligationsOriginal Effective Date and set forth on Schedule 6.01(a) and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness and (ii) Indebtedness under letters of credit existing on the Original Effective Date and set forth on Schedule 6.01(b), without giving effect to any extension, renewal or replacement thereof;
(b) Senior Notes in an aggregate principal amount not to exceed $4,350,000,000Indebtedness created hereunder and under the other Loan Documents;
(c) Indebtedness of any Subsidiary of Borrower to Borrower or any other such Subsidiary or of Borrower to any of its Subsidiaries; provided that (i) all such Indebtedness, if owed to a Credit Party, shall be evidenced by Holdings and the Intercompany Note or another promissory note and shall be subject to a First Priority Lien Subsidiaries pursuant to the applicable Collateral Document, (ii) all such Indebtedness owing Swap Agreements permitted by a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of a subordination agreement with respect to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness and (iii) in respect of any Indebtedness owing by a Subsidiary that is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d)6.11;
(d) Indebtedness incurred by owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to Holdings or any Subsidiary, pursuant to reimbursement or indemnification obligations to such Person, provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations are reimbursed not later than 30 days following such incurrence;
(e) Indebtedness of any Borrower to any Subsidiary or other Borrower and of any Subsidiary to Holdings or any Borrower or any other Subsidiary, provided that (i) Indebtedness of any Subsidiary that is not a Domestic Loan Party to the Loan Parties shall be subject to Section 6.04(b) and (ii) Indebtedness (the “Subordinated Intercompany Debt”) of any Specified Loan Party to any Subsidiary (unless such Indebtedness shall have been pledged in favor of the Collateral Agent by the payee Subsidiary) shall be subordinated to the Obligations in the manner set forth in Exhibit F (it being agreed that such subordination provisions will not restrict the repayment of any such Subordinated Intercompany Debt other than when an Event of Default exists);
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees, documentary letters of credit 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 three Business Days of its incurrence and (y) such Indebtedness in respect of credit or purchase cards is extinguished within 60 days from its incurrence;
(i) Indebtedness of a Subsidiary acquired after the Original Effective Date or a corporation merged into or consolidated with the Company or any Subsidiary after the Original 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 (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness, provided that the aggregate principal amount of such Indebtedness at the time of, and after giving effect to, such acquisition, merger or consolidation, such assumption or such incurrence, as applicable (together with Indebtedness outstanding pursuant to this paragraph (h), paragraph (i) of this Section 6.01 and the Remaining Present Value of outstanding leases permitted under Section 6.03), would not exceed 5% 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 or lease or completion of construction or improvement of the respective asset permitted under this Agreement in order to finance such acquisition, construction 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% 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 Company or any Subsidiary in respect of any Sale and Lease-Back Transaction that is permitted under Section 6.03;
(k) other Indebtedness of any Loan Party, in an aggregate principal amount at any time outstanding pursuant to this paragraph (k) not in excess of $500.0 million; provided that no Indebtedness incurred pursuant to this paragraph (k) can be in the form of a Guarantee of Indebtedness incurred under paragraph (v) of this Section 6.01;
(i) other Indebtedness incurred by the Company or any Subsidiary; provided that (A) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) immediately after giving effect to the issuance, incurrence or assumption of such Indebtedness, Holdings shall be in compliance with the Incurrence Ratios on a Pro Forma Basis, (C) in the case of an incurrence by a Loan Party, the proceeds of such Indebtedness shall be used as otherwise permitted by this Agreement and applicable law and (D) in the case of an incurrence by Subsidiaries that are not Loan Parties, the proceeds of such Indebtedness shall only be used for Permitted Business Acquisitions, Capital Expenditures (or other purposes described in clause (i) of this Section 6.01) or for the purposes described in clause (h) of this Section 6.01 and (ii) Permitted Refinancing Indebtedness in respect thereof;
(m) Guarantees (i) by Holdings, the Company or any Domestic Subsidiary Loan Party of any other Indebtedness of the Company or any Domestic Subsidiary Loan Party expressly permitted to be incurred under this Agreement, (ii) by the Company or any Domestic Subsidiary Loan Party of Indebtedness otherwise expressly permitted hereunder of any Subsidiary that is not a Domestic Subsidiary Loan Party to the extent permitted by Section 6.04(b), (iii) by any Foreign Subsidiary that is not a Loan Party of Indebtedness of another Foreign Subsidiary that is not a Loan Party subject, however, to Section 6.04(b); provided that all Foreign Subsidiaries may guarantee obligations of other Foreign Subsidiaries under ordinary course cash management obligations, (iv) by Holdings or the Company of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(a), (k) or (s), (v) by any Loan Party of Indebtedness permitted to be incurred under Section 6.01(v) and (vi) by Holdings or the Company on an unsecured basis in an aggregate principal amount at any time outstanding pursuant to this clause (m)(vi) not in excess of $60.0 million consisting of Guarantees of the obligations of Foreign Subsidiaries under foreign currency Swap Agreements not entered into for speculative purposes (“Foreign Currency Swap Guarantees”); provided that Guarantees by Holdings or any Domestic Subsidiary Loan Party under this Section 6.01(m) of any other Indebtedness of a Person that is subordinated to other Indebtedness of such Person shall be expressly subordinated to the Obligations on terms matching the subordination provisions of the underlying securities;
(n) Indebtedness arising from agreements of Holdings or any Subsidiary providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired obligations, in a Permitted Acquisition) each case, incurred or from guaranties or letters of credit, surety bonds, performance bonds or similar obligations securing the performance of Borrower or any such Subsidiary pursuant to such agreements, assumed in connection with Permitted Acquisitions or permitted dispositions the disposition of any business, assets or Subsidiary a Subsidiary, other than Guarantees of Borrower Indebtedness incurred by any Person acquiring all or any portion of its Subsidiariessuch business, assets or a Subsidiary for the purpose of financing such acquisition;
(eo) 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 issued for the account of a Subsidiary that is not a Loan Party (and the reimbursement obligations in respect of which may are not guaranteed by a Loan Party) in support of a Captive Insurance Subsidiary’s reinsurance of insurance policies issued for the benefit of Subsidiaries and other 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 (i) $50.0 million plus (ii) the Total Credit-Linked Commitment less the amount of CL Exposure as of such date (which amount described in this clause (ii), from and after the termination date of the Total Credit-Linked Commitment, shall be deemed to exist pursuant to any guarantiesbe the amount as of such termination date);
(q) Indebtedness supported by a Letter of Credit, performance, surety, statutory, appeal in a principal amount not in excess of the stated amount of such Letter of Credit;
(r) Indebtedness consisting of (x) the financing of insurance premiums or (y) take-or-pay or similar obligations incurred contained in supply arrangements, in each case, in the ordinary course of business;
(fs) all premium (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in paragraphs (a) through (r) above;
(t) Indebtedness incurred by Foreign Subsidiaries in a principal amount not to exceed 5% of Consolidated Total Assets outstanding at any time;
(u) Indebtedness incurred on behalf of or representing Guarantees of Indebtedness of joint ventures not in excess of $150.0 million plus the amount of all Guarantees permitted by and constituting Investments under Section 6.04(q);
(v) Indebtedness of one or more Subsidiaries organized under the laws of the People’s Republic of China for their own general corporate purposes in aggregate principal amount not to exceed $400.0 million at any time outstanding;
(w) Indebtedness incurred by any Loan Parties in the form of first lien notes secured on a pari passu basis with the Loans and Commitments (“Pari Passu Notes”) so long as (x) the aggregate principal amount outstanding of such Pari Passu Notes (less the aggregate principal amount of Term Loans prepaid, repurchased, redeemed or otherwise retired with the proceeds of Pari Passu Notes) together with the aggregate principal amount of New Commitments incurred pursuant to Section 2.23 of this Agreement does not exceed $500.0 million, (y) at the time of such incurrence and after giving pro forma effect thereto (A) no Default or Event of Default shall have occurred and be continuing and (B) Holdings shall otherwise be in compliance with the Incurrence Ratios or the proceeds of such Pari Passu Notes are used (i) to purchase, construct or improve capital assets to be used in the business of Holdings and its Subsidiaries, (ii) to finance acquisitions permitted under Section 6.05 or (iii) to repay outstanding Term Loans and (z) the trustee or other representative for such Pari Passu Notes shall have entered into an intercreditor agreement with the Collateral Agent on terms reasonably satisfactory to the Collateral Agent; and
(x) Indebtedness in respect of netting servicesthe Company’s 6⅝% Senior Unsecured Notes, overdraft protections maturing October 15, 2018, issued on September 24, 2010 (the “Senior Unsecured Notes”) and any Permitted Refinancing Indebtedness in respect thereof, in an aggregate principal amount of $600,000,000. Notwithstanding anything to the contrary herein, Holdings shall not be permitted to incur any Indebtedness other than Indebtedness under Sections 6.01(b), (m) and (w). For purposes of determining compliance with this Section 6.01, Holdings may reclassify any Indebtedness incurred pursuant to one of the categories of Indebtedness permitted described in clause (h), (i), (j), (k), (t), (u) or (v) as Indebtedness incurred pursuant to clause (l) above, provided that before and after giving effect to such reclassification, Holdings would be in compliance with the Incurrence Ratios on a Pro Forma Basis and such Indebtedness would otherwise in connection with deposit accounts;
(g) guaranties meet the criteria of Section 6.01(l), including as to obligors, use of proceeds and, in the ordinary course case of business secured indebtedness, would be in compliance with Section 6.02. For the avoidance of the obligations doubt, any Indebtedness permitted by more than one clause of suppliersthis Section 6.01 may be incurred pursuant to any such clause that would permit such Indebtedness, customers, franchisees without also having to be considered as being incurred under any other clause of and licensees to and of Borrower and its Subsidiaries;this Section 6.01 that may apply.
Appears in 1 contract
Sources: Credit Agreement (Celanese CORP)
Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except:
(a) the ObligationsObligations (including, without limitations, obligations in respect of any Incremental Facility);
(bi) Senior Notes in an aggregate principal amount not Indebtedness of any Guarantor Subsidiary owing to exceed $4,350,000,000;
Borrower or to any other Guarantor Subsidiary, or of Borrower to any Guarantor Subsidiary, (cii) Indebtedness of any Subsidiary of Borrower that is not a Guarantor owing to Holdings or Borrower or any other such Subsidiary or of Borrower in an aggregate principal amount that, together with Indebtedness under clause (ii) of Section 6.1(g), does not exceed at any time $20,000,000 in excess of the amount set forth on Schedule 6.1(b); and (iii) Indebtedness of Holdings or Borrower or any Guarantor Subsidiary owing to any Subsidiary of its SubsidiariesHoldings or the Borrower that is not a Guarantor Subsidiary; provided that (i) all such Indebtedness, if owed to a Credit Party, shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral Documentprovided, (iix) all such Indebtedness owing by a Credit Party shall be unsecured and (y) all such Indebtedness payable to a Subsidiary of the Borrower that is not a Credit Party Guarantor shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to terms reasonably satisfactory to the terms of a subordination agreement with respect to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness and (iii) in respect of any Indebtedness owing by a Subsidiary that is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d)Administrative Agent;
(dc) Indebtedness incurred by Borrower Holdings or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including including, Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) ), or from guaranties or letters of credit, surety bonds, bonds or performance bonds or similar obligations securing the performance of Borrower or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower Holdings or any of its Subsidiaries;
(ed) Indebtedness which may be deemed to exist pursuant to any guaranties, letter of credit reimbursement obligations, performance, surety, statutory, appeal or similar obligations incurred in the ordinary course of business;
(fe) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accounts;
(gf) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees of and licensees to and of Borrower Holdings and its Subsidiaries;
(i) guaranties by Borrower of Indebtedness of a Guarantor Subsidiary or guaranties by a Guarantor Subsidiary of Indebtedness of the Borrower or a Guarantor Subsidiary or (ii) guaranties of Indebtedness of any Subsidiary (other than a Guarantor Subsidiary as referred to in clause (i) above) not in excess of, together with Indebtedness under clause (ii) of Section 6.1(b), at any time $20,000,000 in excess of the amount set forth on Schedule 6.1(b), with respect, in each case, to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.1; provided, that if the Indebtedness that is being guarantied is unsecured and/or subordinated to the Obligations, the guaranty shall also be unsecured and/or subordinated to the Obligations;
(h) Indebtedness in connection with the repurchase otherwise permitted hereunder of equity issued to any current or former officer, director, consultant or employee of Holdings or any of its Subsidiaries, or his or her estate, spouse, former spouse, or family member (including any promissory notes issued by any Credit Party or any of its Subsidiaries to repurchase equity from such Persons) in an amount not to exceed $5,000,000 in the aggregate at any time outstanding;
(i) Indebtedness in an amount not to exceed $20,000,000 in the aggregate at any time outstanding when aggregated with amounts under Section 6.1(m) consisting of Indebtedness of Borrower or any of its Subsidiaries issued to a seller in connection with a Permitted Acquisition;
(j) the incurrence by any Foreign Subsidiary of Holdings of Indebtedness owing to Persons other than Holdings and any of its Subsidiaries in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, not to exceed the sum of $50,000,000;
(i) Permitted Debt Securities so long as no Event of Default has occurred and is continuing or would arise after giving effect thereto and on a Pro Forma Basis the Total Leverage Ratio as of the last day of the most recent fiscal quarter for which financial statements have been delivered pursuant to Section 5.1(a) or (b) prior to the incurrence of such Permitted Debt Securities is at least 0.25x less than the maximum permitted Total Leverage Ratio as of such date pursuant to Section 6.7less than or equal to 5.25:1.00 and (i) any Permitted Refinancing Indebtedness in respect of Indebtedness permitted by this clause (k);
(l) Indebtedness with respect to Capital Leases and purchase money Indebtedness and any Permitted Refinancing Indebtedness in respect thereof in an aggregate amount not to exceed $20,000,000;
(m) Indebtedness of a Person or Indebtedness attaching to assets of a Person that, in either case, becomes a Subsidiary or Indebtedness attaching to assets that are acquired by Borrower or any of its Subsidiaries, in each case after the Closing Date as the result of a Permitted Acquisition and any Permitted Refinancing Indebtedness in respect thereof, in an aggregate amount not to exceed $20,000,000 at any one time outstanding (when aggregated with amounts under Section 6.1(i)), provided that (x) 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 anticipation thereof and (y) such Indebtedness is not guaranteed in any respect by Holdings or any Subsidiary (other than by any such Person that so becomes a Subsidiary);
(n) other unsecured Indebtedness of Holdings, the Borrower and/or its Subsidiaries or other subordinated Indebtedness (not including any other amounts permitted under this Section 6.1) in an aggregate amount not to exceed at any time $50,000,000;
(o) Indebtedness under Interest Rate Agreements or Currency Agreements entered into in the ordinary course of business and not for speculative purposes;
(p) Indebtedness existing on the Closing Date and listed on Schedule 6.1 hereto (and Permitted Refinancing Indebtedness in respect thereof);
(q) Indebtedness of any Credit Party incurred during any Suspension Period; and
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Aeroflex Holding Corp.)
Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectlyIncur, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect permit to exist any Indebtedness, except:
(a) Indebtedness existing on the ObligationsClosing Date and set forth on Schedule 6.01 and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(b) Senior Notes in an aggregate principal amount not Indebtedness created hereunder and under the other Loan Documents and any Permitted Refinancing Indebtedness incurred to exceed $4,350,000,000Refinance such Indebtedness;
(c) Indebtedness of any Subsidiary of Borrower to a Borrower or any other such Subsidiary or of Borrower to any of its Subsidiaries; provided that (i) all such Indebtedness, if owed to a Credit Party, shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral Document, (ii) all such Indebtedness owing by a Credit Party to a Subsidiary that is Swap Agreements not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of a subordination agreement with respect to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness and (iii) in respect of any Indebtedness owing by a Subsidiary that is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d)entered into for speculative purposes;
(d) Indebtedness incurred by owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to a Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of its Subsidiaries business; provided, that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations are reimbursed not later than 30 days following such incurrence;
(e) Indebtedness of a Borrower to any Subsidiary and of any Subsidiary to a 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 Borrowers and the Subsidiaries, (i) Indebtedness of any Subsidiary that is not a Subsidiary Loan Party owing to a Borrower or any Subsidiary Loan Parties shall be subject to Section 6.04(b) or (ee) and (ii) Indebtedness of a Borrower to any Subsidiary and Indebtedness of a Borrower or any Subsidiary Loan Party to any Subsidiary that is not a Subsidiary Loan Party (the “Subordinated Intercompany Debt”) shall be subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the connection with the Development or 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;
(i) Indebtedness of a Subsidiary acquired after the Closing Date or an entity merged into or consolidated with a Borrower or any Subsidiary after the Closing Date and Indebtedness assumed in connection with the acquisition of assets (other than the Contributed 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 Borrowers shall be in Pro Forma Compliance;
(i) (i) Capital Lease Obligations, mortgage financings and other purchase money Indebtedness incurred by a 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, so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) after giving effect to the issuance, incurrence or assumption of such Indebtedness, the Borrowers shall be in Pro Forma Compliance, and (ii) any Permitted Refinancing Indebtedness in respect thereof; provided that the aggregate principal amount of Indebtedness outstanding pursuant to this Section 6.01(i) shall not, at any time prior to the Commencement of Operations of the Development, exceed $50 million;
(j) Capital Lease Obligations incurred by a 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 in an aggregate principal amount outstanding not to exceed $30 million;
(l) to the extent constituting Indebtedness, agreements to pay service fees to professionals (including architects, engineers and designers) in furtherance of and/or in connection with the Development, in each case to the extent such agreements and related payment provisions are reasonably consistent with commonly accepted industry practices (provided, that no such agreements shall give rise to Indebtedness for borrowed money);
(m) after the Commencement of Operations of the Development, (i) Guarantees by a Borrower or any Subsidiary Loan Party of any Indebtedness of a Borrower or any Subsidiary Loan Party permitted to be incurred under this Agreement (subject to the proviso at the end of this Section 6.01(m)), (ii) by a 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)), 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 a Borrower or any Subsidiary Loan Party under this Section 6.01(m) shall be permitted prior to the Commencement of Operations of the Development to the extent such Guarantees are of Indebtedness of a Borrower or any Subsidiary Loan Party or are subordinated to the Obligations;
(n) Indebtedness arising from agreements of a Borrower or any Subsidiary providing for indemnification, adjustment of purchase or acquisition price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired obligations, in a Permitted Acquisition) each case, incurred or from guaranties or letters of credit, surety bonds, performance bonds or similar obligations securing the performance of Borrower or any such Subsidiary pursuant to such agreements, assumed in connection with the Transactions and any Permitted Acquisitions Business Acquisition or permitted dispositions 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 and trade letters of credit (other than obligations in respect of other Indebtedness) in the ordinary course of business or consistent with past practice or industry practice;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) after the Commencement of Operations of the Development, (i) other Indebtedness so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) after giving effect to the issuance, incurrence or assumption of such Indebtedness the Senior Secured Leverage Ratio on a Pro Forma Basis shall not be greater than 4.0 to 1.0 and (ii) Permitted Refinancing Indebtedness in respect thereof; provided, however, that Indebtedness of Subsidiaries that are not Subsidiary Loan Parties that is outstanding pursuant to clause (r)(i) shall not at any time exceed $10 million in the aggregate;
(s) [reserved];
(t) unsecured Indebtedness in respect of obligations of a Borrower or any Subsidiary to pay the deferred purchase price of its Subsidiariesgoods or services or progress payments in connection with such goods and services; provided, that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 90 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Swap Agreements;
(eu) Indebtedness which may be deemed representing deferred compensation to exist pursuant to employees of a Borrower or any guaranties, performance, surety, statutory, appeal or similar obligations Subsidiary incurred in the ordinary course of business;
(fv) [reserved];
(w) Indebtedness of the Borrowers and the Subsidiaries incurred under lines of credit or overdraft facilities (including, but not limited to, intraday, ACH and purchasing card/T&E services) extended by one or more financial institutions reasonably acceptable to the Administrative Agent or by one or more of the Lenders or their Affiliates and (in each case) established for the Borrowers’ and the Subsidiaries’ ordinary course of operations (such Indebtedness, the “Overdraft Line”), which Indebtedness may be secured under the Security Documents;
(x) Indebtedness incurred on behalf of (or, after the Commencement of Operations of the Development, representing Guarantees of Indebtedness thereof) joint ventures not in excess, at any one time outstanding, of $5.0 million; provided that the Guarantees of such Indebtedness shall be permitted to the extent such Guarantees are subordinated to the Obligations pursuant to an intercreditor agreement reasonably satisfactory to the Administrative Agent;
(y) Indebtedness consisting of obligations of a 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;
(z) all premium (if any, including tender premiums), expenses, defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in paragraphs (a) through (y) above. For purposes of determining compliance with this Section 6.01, the amount of any Indebtedness denominated in any currency other than Dollars shall be calculated based on customary currency exchange rates in effect, in the case of such Indebtedness incurred (in respect of netting servicesterm Indebtedness) or committed (in respect of revolving Indebtedness) on or prior to the Closing Date, overdraft protections 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 otherwise 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 deposit accounts;
such refinancing. For purposes of determining compliance with this Section 6.01, (gA) guaranties Indebtedness need not be permitted solely by reference to one category of permitted Indebtedness described in Sections 6.01(a) through (z) but may be permitted in part under any combination thereof and (B) in the ordinary course event that an item of business Indebtedness (or any portion thereof) meets the criteria of one or more of the obligations categories of supplierspermitted Indebtedness described in Sections 6.01(a) through (z), customersthe Borrowers shall, franchisees in their 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 licensees will only be required to include the amount and type of Borrower such item of Indebtedness (or any portion thereof) in one of the above clauses and its Subsidiaries;such item of Indebtedness shall be treated as having been incurred or existing pursuant to only one of such clauses. In addition, with respect to any Indebtedness that was permitted to be incurred hereunder on the date of such incurrence, any Increased Amount of such Indebtedness shall also be permitted hereunder after the date of such incurrence.
Appears in 1 contract
Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except:
(a) the Obligations;
(b) Senior Notes in an aggregate principal amount not to exceed $4,350,000,000;
(c) Indebtedness of any Subsidiary of Borrower Parent to Borrower Parent or any other such Subsidiary or of Borrower Parent to any of its Subsidiaries; provided that (i) all such Indebtedness, if owed to a Credit Party, shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral Document, (ii) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of a subordination agreement with respect to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness and (iii) in respect of any Indebtedness owing by a Subsidiary that is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d);
(d) Indebtedness incurred by Parent, Borrower or any of its their respective Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) or from guaranties or letters of credit, surety bonds, performance bonds or similar obligations securing the performance of Parent, Borrower or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Parent, Borrower or any of its their respective Subsidiaries;
(e) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal or similar obligations incurred in the ordinary course of business;
(f) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accounts;
(g) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees of and licensees to and of Parent, Borrower and their respective Subsidiaries;
(h) guaranties by Parent of Indebtedness of a Subsidiary of Parent or guaranties by a Subsidiary of Parent of Indebtedness of Parent or any other such Subsidiary, in each case with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.1; provided that (i) if the Indebtedness that is being guarantied is unsecured and/or subordinated to the Obligations, the guaranty thereof shall be unsecured and/or subordinated to the Obligations to the same extent and (ii) in respect of any guaranty by a Credit Party of Indebtedness of a Subsidiary that is not a Credit Party, such guaranty is permitted as an Investment under Section 6.6(d);
(i) Indebtedness described in Schedule 6.1 (other than Indebtedness described in clauses (a) or (b) of this Section 6.1);
(j) Indebtedness of Parent or its Subsidiaries with respect to Capital Leases or purchase money Indebtedness in an aggregate principal amount at any time outstanding not to exceed the greater of (x) $50,000,000 and (y) 0.50% of Consolidated Total Assets; provided, any such Indebtedness shall be secured only by the asset acquired in connection with the incurrence of such Indebtedness;
(k) Indebtedness of a Person or Indebtedness attaching to assets of a Person that, in either case, becomes a Subsidiary of Parent or Indebtedness attaching to assets that are acquired by Parent or any of its Subsidiaries, in each case after the Closing Date; provided that (x) on a Pro Forma Basis (including, for the avoidance of doubt, Subordinated Indebtedness) after giving effect to the incurrence of such Indebtedness (including the use of proceeds thereof), the Leverage Ratio of Parent shall be less than or equal to 4.50 to 1.00, as of the last day of the most recently ended Fiscal Quarter for which financial statements were required to have been delivered pursuant to Section 5.1(a) or (b), (y) 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 anticipation thereof and (z) such Indebtedness is not guaranteed in any respect by Parent or any Subsidiary (other than by any such Person that so becomes a Subsidiary);
(l) Indebtedness representing the deferred purchase price of property (including Intellectual Property) or services, including earn-out obligations, purchase price adjustments, escrow arrangements or other arrangements representing deferred payments incurred in connection with the acquisition of equity or assets permitted or consented to hereunder;
(i) Indebtedness under any Hedge Agreement (and any guarantees thereof), (ii) Indebtedness under any Cash Management Agreement (and any guarantees thereof) and (iii) Indebtedness arising under any Currency Agreement or Interest Rate Agreement (and, in each case, any guarantees thereof), including any extensions thereof and such increases, if any, as shall result when the underlying obligations of such agreements are marked to market or increased to address accrued interest on the obligation relating to such agreement;
(n) Indebtedness in respect of performance and surety bonds and completion guarantees provided by Parent or any of its Subsidiaries;
(o) Indebtedness of Parent or any Subsidiary as an account party in respect of trade letters of credit;
(p) [Reserved];
(q) other Indebtedness (including, for the avoidance of doubt, Subordinated Indebtedness) of Parent, Borrower and their respective Subsidiaries; provided that on a Pro Forma Basis after giving effect to the incurrence of such Indebtedness (including the use of proceeds thereof including, without limitation, after the date of incurrence or issuance of any such Indebtedness pursuant to any escrow arrangement, delayed draw, delayed closing or similar or analogous arrangement), (x) no Default or Event of Default has occurred and is continuing or would result therefrom and (y) the Leverage Ratio of Parent shall be less than or equal to 4.50 to 1.00, as of the last day of the most recently ended Fiscal Quarter for which financial statements were required to have been delivered pursuant to Section 5.1(a) or (b);
(r) provided that no Default or Event of Default has occurred and is continuing or would result therefrom, the incurrence or issuance by Parent or any Subsidiary of Parent of Indebtedness which serves to extend, replace, refund, renew, defease or refinance any Indebtedness incurred as permitted under clause (b), (i), (j), (k), (l), (r), (s), (t) or (v) of this Section 6.1 or any Indebtedness issued to so extend, replace, refund, renew, defease or refinance such Indebtedness, or any Indebtedness, including additional Indebtedness, incurred to pay premiums (including tender premiums), defeasance costs and fees and expenses in connection therewith (the “Refinancing Indebtedness”); provided, however, that such Refinancing Indebtedness:
(1) has a final maturity date later than the date that is 91 days after the latest Revolving Commitment Termination Date, and has a weighted average life to the date of the latest Revolving Commitment Termination Date that is not less than the weighted average life to the date of the latest Revolving Commitment Termination Date of the Indebtedness being extended, replaced, renewed, defeased, refunded or refinanced,
(2) to the extent such Refinancing Indebtedness extends, replaces, refunds, renews, defeases or refinances (x) Indebtedness subordinated or pari passu to the Obligations, such Refinancing Indebtedness is subordinated or pari passu to the Obligations at least to the same extent (as determined in good faith by the board of directors of Parent or Borrower) as the Indebtedness being extended, replaced, renewed, defeased, refinanced or refunded or (y) Disqualified Equity Interests such Refinancing Indebtedness must be Disqualified Equity Interests,
(3) shall have direct and contingent obligors that are the same as (or, in the case of contingent obligors, no more expansive than) the direct and contingent obligors, respectively, of the refinanced Indebtedness, or
(4) shall not be secured by any assets that were not required to be used to secure the Indebtedness being extended, replaced, renewed, defeased, refunded or refinanced;
(s) Permitted Secured Notes;
(t) Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such Person) providing workers’ compensation, health, death, disability or other employee benefits or property, casualty or liability insurance or self-insurance, or other Indebtedness regarding workers’ compensation claims pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business;
(u) Indebtedness of Parent or any of its Subsidiaries consisting of (x) the financing of insurance premiums or (y) take-or-pay obligations contained in supply arrangements, in each case, incurred in the ordinary course of business; and
(v) Indebtedness of Subsidiaries of Parent (other than Biovail Insurance and any other such Subsidiary that is not permitted by Applicable Law to guaranty the Obligations) that are not Credit Parties and that are organized under the laws of any jurisdiction other than the United States of America consisting of working capital credit facilities in an aggregate principal amount at any time outstanding under this clause (v) not to exceed the greatest of (i) 2.5% of the total revenues for the four Fiscal Quarter period most recently ended, (ii) 2.5% of the consolidated total assets, as determined in accordance with GAAP, as of the applicable date of determination, in each case of subclause (i) and (ii), of all Subsidiaries of Parent (other than Biovail Insurance and any other such Subsidiary that is not permitted by Applicable Law to guaranty the Obligations) that are not Credit Parties, and (iii) $40,000,000.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Valeant Pharmaceuticals International, Inc.)
Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectlyIncur, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect permit to exist any Indebtedness, except:
(a) (i) Indebtedness existing or committed on the ObligationsClosing Date (provided, that any such Indebtedness that is (x) not intercompany Indebtedness and (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) Senior Notes in an aggregate principal amount not (i) Indebtedness created hereunder (including pursuant to exceed $4,350,000,000Section 2.21) and under the other Loan Documents and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent with past practice or industry practices;
(e) Indebtedness of the Borrower to Holdings or any Subsidiary and of any Subsidiary to Holdings, the Borrower or any other such Subsidiary or of Borrower Subsidiary; provided, that Indebtedness owed by any Loan Party to any of its Subsidiaries; provided that (i) all such Indebtedness, if owed to a Credit Party, shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral Document, (ii) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Loan Party incurred pursuant to this Section 6.01(e) shall be unsecured and subordinated in right of payment to the payment Loan Obligations under this Agreement on subordination terms described in full of the Obligations pursuant to the terms of a subordination agreement with respect to such Indebtedness intercompany note substantially in the form of Exhibit J-2 among J to the Original Credit Parties Agreement or on substantially identical subordination terms or other subordination terms reasonably satisfactory to the Administrative Agent and such Subsidiaries party to such the Borrower;
(f) Indebtedness and (iii) in respect of any Indebtedness owing by a Subsidiary that is not a Credit 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 or consistent with past practice or industry practices, including those incurred to a Credit Partysecure health, such Indebtedness is permitted as an Investment under safety and environmental obligations in the proviso to Section 6.6(d)ordinary course of business or consistent with past practice or industry practices;
(dg) Indebtedness incurred by Borrower or any of its Subsidiaries arising from agreements providing for indemnificationthe honoring by a bank or other financial institution of a check, adjustment of purchase price draft or similar obligations (including Indebtedness consisting instrument drawn against insufficient funds in the ordinary course of the deferred purchase price of property acquired in a Permitted Acquisition) business or from guaranties or letters of credit, surety bonds, performance bonds or similar obligations securing the performance of Borrower or any such Subsidiary pursuant to such agreementsother cash management services, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or any of its Subsidiaries;
(e) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal or similar obligations each case incurred in the ordinary course of business;
(fi) Indebtedness of a Subsidiary acquired after the Closing Date or a person merged or consolidated with the Borrower or any Subsidiary after the Closing Date and Indebtedness otherwise incurred or assumed by the Borrower or any Subsidiary in connection with the acquisition of assets or Equity Interests (including a Permitted Business Acquisition), where such acquisition, merger or consolidation is not prohibited by this Agreement; provided, that, (w) in the case of any such Indebtedness secured by Liens on Collateral that are Other First Liens, the Net First Lien Leverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger or consolidation, the incurrence or assumption of such Indebtedness and the use of proceeds thereof and any related transactions is (I) not greater than 3.10 to 1.00 or (II) no greater than the Net First Lien Leverage Ratio in effect immediately prior thereto, (x) in the case of any such Indebtedness secured by Liens on Collateral that are Junior Liens, the Net Secured Leverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger or consolidation, the incurrence or assumption of such Indebtedness and the use of proceeds thereof and any related transactions is (I) not greater than 3.60 to 1.00 or (II) no greater than the Net Secured Leverage Ratio in effect immediately prior thereto, (y) in the case of any other such Indebtedness, the Interest Coverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger or consolidation, the incurrence or assumption of such Indebtedness and the use of proceeds thereof and any related transactions is (I) not less than 2.00 to 1.00 or (II) no less than the Interest Coverage Ratio in effect immediately prior thereto and (z) in the case of any such Indebtedness incurred under this clause (h) by a Subsidiary other than a Subsidiary Loan Party that is incurred in contemplation of such acquisition, merger or consolidation, the aggregate outstanding principal amount of such Indebtedness immediately after giving effect to such acquisition, merger or consolidation, the incurrence of such Indebtedness and the use of proceeds thereof and any related transactions shall not exceed the greater of $250,000,000 and 0.30 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; provided, further, that the incurrence of any Indebtedness for borrowed money pursuant to this clause (h)(i) incurred in contemplation of such acquisition, merger or consolidation shall be subject to the last paragraph of this Section 6.01 and the incurrence (but not assumption) of any such term loan Indebtedness that is secured by Other First Liens shall be subject to the last paragraph of Section 6.02; and (ii) any Permitted Refinancing Indebtedness incurred to Refinance any such Indebtedness;
(i) (i) Capitalized Lease Obligations, mortgage financings and other Indebtedness incurred by the Borrower or any Subsidiary prior to or within 270 days after the acquisition, lease, construction, installation, maintenance, service, repair, replacement or improvement of the respective property (real or personal, and whether through the direct purchase of property or the Equity Interest of any person owning such property) permitted under this Agreement in order to finance such acquisition, lease, construction, installation, maintenance, service, repair, replacement or improvement, in an aggregate principal amount that immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(i)(i), would not exceed the greater of $300,000,000 and 0.35 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, (ii) Indebtedness (including Capitalized Lease Obligations) incurred by the Borrower or any Subsidiary to finance (whether prior to or within 270 days after) the acquisition, lease, construction, installation, maintenance, service, repair, replacement or improvement of property (real or personal), computer equipment (including servers), storage equipment, networking equipment or other equipment or assets used or useful in the business of the Borrower and its Subsidiaries and any finance lease obligations not prohibited hereunder and (iii) any Permitted Refinancing Indebtedness in respect of the foregoing;
(i) Capitalized Lease Obligations and any other Indebtedness incurred by the Borrower or any Subsidiary arising from any Sale and Lease-Back Transaction that is permitted under Section 6.03, (ii) Capitalized Lease Obligations or other obligations or deferrals attributable to capital spending and (iii) any Permitted Refinancing Indebtedness in respect of the foregoing;
(i) other Indebtedness of the Borrower or any Subsidiary, in an aggregate principal amount that, immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(k), would not exceed the greater of $425,000,000 and 0.50 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(l) Indebtedness of the Borrower or any Subsidiary in an aggregate outstanding principal amount not greater than 100% of the amount of net cash proceeds received by the Borrower from (x) the issuance or sale of its Qualified Equity Interests or (y) a contribution to its common equity with the net cash proceeds from the issuance and sale by Holdings or a Parent Entity of its Qualified Equity Interests or a contribution to its common equity (in each case of (x) and (y), other than proceeds from the sale of Equity Interests to, or contributions from, the Borrower or any of its Subsidiaries), to the extent such net cash proceeds do not constitute Excluded Contributions or Permitted Cure Securities;
(m) Guarantees by the Borrower or any Subsidiary of any Indebtedness of the Borrower or any Subsidiary permitted to be incurred under this Agreement; provided, that Guarantees by the Borrower or any Subsidiary Loan Party under this Section 6.01(m) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Loan Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(n) Indebtedness arising from agreements of the Borrower or any Subsidiary providing for indemnification, adjustment of purchase or acquisition price or similar obligations (including earn-outs), in each case, incurred or assumed in connection with the Transactions, any Permitted Business Acquisition, other Investments or the disposition of any business, assets or a Subsidiary not prohibited by this Agreement;
(o) Indebtedness in respect of netting servicesletters of credit, overdraft protections bank guarantees, warehouse receipts or similar instruments issued to support performance obligations and otherwise trade letters of credit (other than obligations in connection with deposit accounts;
(grespect of other Indebtedness) guaranties in the ordinary course of business or consistent with past practice or industry practices;
(p) [reserved];
(i) Indebtedness secured by Liens on Collateral that are Other First Liens so long as immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, the Net First Lien Leverage Ratio on a Pro Forma Basis is not greater than 3.10 to 1.00; provided, that (x) the aggregate principal amount of Indebtedness outstanding under this clause (q)(i) at such time that is incurred by a Subsidiary other than a Subsidiary Loan Party shall not exceed, when taken together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(q)(i), Section 6.01(r)(i) and Section 6.01(s)(i) that are incurred by Subsidiaries other than the Subsidiary Loan Parties, the greater of $250,000,000 and 0.30 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period and (y) the incurrence of any Indebtedness for borrowed money pursuant to this clause (q)(i) shall be subject to the last paragraph of this Section 6.01 and the incurrence of any Indebtedness for borrowed money pursuant to this clause (q)(i) in the form of term loans shall be subject to the last paragraph of Section 6.02, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(i) Indebtedness secured by Liens on Collateral that are Junior Liens so long as immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, the Net Secured Leverage Ratio on a Pro Forma Basis is not greater than 3.60 to 1.00; provided, that (x) the aggregate principal amount of Indebtedness outstanding under this clause (r)(i) at such time that is incurred by a Subsidiary other than a Subsidiary Loan Party shall not exceed, when taken together with the aggregate principal amount of any other Indebtedness outstanding pursuant to Section 6.01(q)(i), this Section 6.01(r)(i) and Section 6.01(s)(i) that are incurred by Subsidiaries other than the Subsidiary Loan Parties, the greater of $250,000,000 and 0.30 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period and (y) the incurrence of any Indebtedness for borrowed money pursuant to this clause (r)(i) shall be subject to the last paragraph of this Section 6.01, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(i) other Indebtedness so long as immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, the Interest Coverage Ratio on a Pro Forma Basis is not less than 2.00 to 1.00; provided, that (x) the aggregate principal amount of Indebtedness outstanding under this clause (s)(i) at such time that is incurred by a Subsidiary other than a Subsidiary Loan Party shall not exceed, when taken together with the aggregate principal amount of any other Indebtedness outstanding pursuant to Section 6.01(q)(i), Section 6.01(r)(i) and this Section 6.01(s)(i) that are incurred by Subsidiaries other than the Subsidiary Loan Parties, the greater of $250,000,000 and 0.30 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period and (y) the incurrence of any Indebtedness for borrowed money pursuant to this clause (s)(i) shall be subject to the last paragraph of this Section 6.01, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(i) Indebtedness of Subsidiaries that are not Subsidiary Loan Parties in an aggregate principal amount outstanding that, immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(t), would not exceed the greater of $250,000,000 and 0.30 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(u) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower or any Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided, that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms in the ordinary course of suppliersbusiness and not in connection with the borrowing of money or any Hedging Agreements;
(v) Indebtedness representing deferred compensation to employees, customersconsultants or independent contractors of the Borrower (or, franchisees of and licensees to and of the extent such work is done for the Borrower and or its Subsidiaries, any direct or indirect parent thereof) or any Subsidiary incurred in the ordinary course of business;
(w) Indebtedness in connection with Permitted Securitization Financings;
(x) obligations in respect of Cash Management Agreements;
(i) Refinancing Notes and (ii) any Permitted Refinancing Indebtedness incurred in respect thereof;
(i) Indebtedness in an aggregate principal amount outstanding not to exceed at the time of incurrence the Incremental Amount available at such time; provided that the incurrence of any Indebtedness for borrowed money pursuant to this clause (z)(i) shall be subject to the last paragraph of Section 6.01 and the incurrence of any Indebtedness for borrowed money secured by Liens on Collateral that are Other First Liens pursuant to this clause (z)(i) in the form of term loans shall be subject to the last paragraph of Section 6.02 and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(aa) [reserved];
(i) Indebtedness of, incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures in an aggregate principal amount that, immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(bb), would not exceed the greater of $425,000,000 and 0.50 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(cc) Indebtedness issued by the Borrower or any Subsidiary to current or former officers, directors and employees thereof or of Holdings or any Parent Entity, their respective estates, spouses or former spouses to finance the purchase or redemptio
Appears in 1 contract
Sources: Incremental Assumption and Amendment Agreement (Rackspace Technology, Inc.)
Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except:
(a) the Obligations;
(bi) Senior Notes in an aggregate principal amount not Intercompany Indebtedness of any Credit Party payable to exceed $4,350,000,000;
(c) Company or any of its Subsidiaries or Intercompany Indebtedness of any Subsidiary of Borrower to Borrower or any other such Subsidiary or of Borrower Company payable to any Credit Party, provided that, simultaneously with the incurrence of its Subsidiaries; provided that such Indebtedness Company shall cause (iA) all such Indebtedness, if owed Intercompany Indebtedness to a Credit Party, shall be evidenced by the Intercompany Note or another promissory note unsecured and shall be subject to a perfected First Priority Lien pursuant to the applicable Collateral Document, Pledge and Security Agreement (ii) all such other than any Intercompany Indebtedness owing by a Credit Party payable to a Subsidiary of Company that is not a Credit Party), and (B) all such Intercompany Indebtedness of any Credit Party shall to be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of a subordination agreement with respect to the Interco Subordination Agreement; provided further, that no such Intercompany Indebtedness shall be evidenced by any note or other instrument unless such note is substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness L and (iii) in except with respect of to any Indebtedness owing by such note payable to a Subsidiary of Company that is not a Credit Party Party) the payee thereunder shall immediately endorse and deliver the same to Collateral Agent; and (ii) Indebtedness of any Foreign Subsidiary payable to any other Foreign Subsidiary;
(c) Indebtedness with respect to (i) the Convertible Securities and any Permitted Refinancings thereof; (ii) the Senior Secured Notes in an aggregate principal amount not to exceed at any time outstanding $750.0 million and any Permitted Refinancings thereof; and (iii) the New Senior Subordinated Notes and any Permitted Refinancings thereof, in each case including successive Permitted Refinancings provided, that the net proceeds of any Indebtedness incurred as a Credit PartyPermitted Refinancing prior to the purchase, redemption, exchange or repayment of the Indebtedness subject to such Indebtedness is permitted as an Investment under Permitted Refinancing shall be immediately deposited in the proviso to Section 6.6(d)Designated Proceeds Account;
(d) Indebtedness incurred by Borrower Company or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) obligations, or from guaranties or letters of credit, surety bonds, bonds or performance bonds or similar obligations securing the performance of Borrower Company or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower Company or any of its Subsidiaries;
(e) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal or similar obligations incurred in the ordinary course of business;
(f) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accounts;
(g) guaranties in the ordinary course of business of the obligations owed to or of suppliers, customers, franchisees of and licensees to and of Borrower Company and its Subsidiaries;
(g) (i) guaranties by Company of Indebtedness of a Guarantor or guaranties by a Subsidiary of Company of Indebtedness of Company or a Guarantor with respect, in each case, to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.1, and (ii) guaranties by Company or a Guarantor of Indebtedness of Foreign Subsidiaries, which Indebtedness of Foreign Subsidiaries exists on the Closing Date and is listed in Schedule 6.1 of the Disclosure Letter; (iii) guaranties by the Company or any Subsidiary of the customary indemnification obligations of its Foreign Subsidiaries and interest, fees and expenses arising under sales of receivables owned by such Foreign Subsidiaries permitted by Section 6.8(d); and (iv) guaranties by Company or any Guarantor of customary indemnification obligations and interest, fees and expenses arising under sales of receivables permitted by Section 6.8(e);
(h) Indebtedness (other than the Indebtedness with respect to Convertible Securities) existing on the Closing Date described in Schedule 6.1 of the Disclosure Letter (or other non-material Indebtedness of Company and its Subsidiaries existing on the Closing Date and not described in the Disclosure Letter in an aggregate principal amount not to exceed at any time $5.0 million), but not any extensions, renewals or replacements of such Indebtedness except Permitted Refinancings of any such Indebtedness;
(i) Indebtedness with respect to Capital Leases entered into after the Closing Date in an aggregate principal amount not to exceed at any time outstanding $75.0 million plus any amount permitted by and not utilized pursuant to Section 6.1(j), but in no event shall the aggregate outstanding principal amount of Indebtedness under this Section 6.1(i) and Section 6.1(j) below exceed at any time $150.0 million;
(j) purchase money Indebtedness in an aggregate principal amount not to exceed at any time outstanding $75.0 million plus any amount permitted by and not utilized pursuant to Section 6.1(i), but in no event shall the aggregate outstanding principal amount of Indebtedness under this Section 6.1(j) and Section 6.1(i) above exceed at any time $150.0 million; provided, any such Indebtedness (i) shall be secured only by the asset (and any accession, addition or improvement thereto, any replacement thereof and the proceeds thereof) acquired in connection with the incurrence of such Indebtedness and customary cash security deposits, and (ii) shall not exceed 100.0% of the aggregate consideration paid with respect to such asset;
(k) non-recourse (other than certain limited, customary provisions for recourse) Indebtedness secured by the Corporate Head Office Campus in a principal amount not to exceed the greater of (a) $50.0 million and (b) the fair market value of the Corporate Head Office Campus;
(l) Indebtedness of Foreign Subsidiaries in an aggregate principal amount not to exceed at any time 7.5% of Consolidated Tangible Foreign Assets;
(m) Indebtedness under Hedge Agreements entered into from time to time by Company or any of its Subsidiaries in accordance with Section 6.6(j) and Secured Hedge Agreements;
(n) the Existing Letters of Credit;
(o) reimbursement obligations in respect of letters of credit, bank guarantees and banker’s acceptances in an aggregate face amount not to exceed $25.0 million at any time;
(p) Indebtedness of a Subsidiary outstanding on the date such Subsidiary was acquired by Company or any of its Subsidiaries or assumed in connection with the acquisition of assets from a Person (other than Indebtedness incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of transactions pursuant to which such Subsidiary became a Subsidiary of Company or was otherwise acquired by Company); provided that the aggregate principal amount (or accreted value, as applicable) of all such Indebtedness incurred pursuant to this clause (p) at any time outstanding shall not exceed $50.0 million;
(q) customary indemnification obligations pursuant to factoring or similar arrangements permitted under Section 6.8(d) or Section 6.8(e) hereof;
(r) other unsecured Indebtedness of Company and its Subsidiaries in an aggregate principal amount not to exceed at any time $100.0 million; and
(s) Indebtedness (including guaranties) incurred pursuant to Permitted Securitizations.
Appears in 1 contract
Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except:
(a) the Obligations;
(b) Senior Notes in an aggregate principal amount not to exceed $4,350,000,000;
(c) Indebtedness of any Subsidiary of Borrower to Borrower or any other such Subsidiary or of Borrower to any of its Subsidiaries; provided that The Collateral secures and will secure (i) all Indebtedness of Pledgor to Lender. Each person or entity obligated under any Indebtedness is sometimes referred to in this Agreement as a “Debtor.” (b) “Indebtedness” means: (i) all debts, obligations or liabilities, of every kind or character of Debtor or any one or more of them to Lender, now or hereafter existing or incurred, whether absolute or contingent, primary or secondary, secured or unsecured, joint or several, voluntary or involuntary, due or not due, or incurred directly or indirectly or acquired by Lender by assignment or otherwise; including interest accruing after commencement of any insolvency, reorganization or like proceeding relating to any Debtor, whether or not allowed in such Indebtednessproceeding and further including all debt, if owed obligations or liabilities arising under or incurred in connection with any and all letters of credit issued by Lender for the account of any Debtor or at the request of any Debtor and any reimbursement, indemnity or similar agreements given by any Debtor to a Credit Party, shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral Document, Lender in connection therewith; (ii) all such Indebtedness owing by debts, obligations or liabilities arising pursuant to any agreement between Pledgor and/or any Debtor and Bank or any affiliate of Bank now existing or hereafter entered into, which provides for an interest rate, credit, commodity or equity swap, cap, floor, collar, forward foreign exchange transaction, currency swap, cross currency rate swap, currency option, securities puts, calls, collars, options or forwards or any combination of, or option with respect to, these or similar transactions (each a Credit Party "Hedge Transaction”) other than Excluded Hedge Obligations. (iii) “Excluded Hedge Obligations” shall mean any obligations arising under any Hedge Transaction to a Subsidiary that which Pledgor is not a Credit Party shall be unsecured party if, and subordinated in right of payment to the payment extent that, the grant by such Pledgor of a security interest in full the Collateral to Bank to secure such obligations under such Hedge Transaction would violate the Commodity Exchange Act by virtue of such Pledgor’s failure to constitute an “eligible contract participant” as defined in the Commodity Exchange Act as of the Obligations pursuant to the terms of a subordination agreement date required thereunder with respect to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness and (iii) in respect of any Indebtedness owing by a Subsidiary that is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d);
(d) Indebtedness incurred by Borrower or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) or from guaranties or letters of credit, surety bonds, performance bonds or similar obligations securing the performance of Borrower or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or any of its Subsidiaries;
(e) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal or similar obligations incurred in the ordinary course of business;
(f) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accounts;
(g) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees of and licensees to and of Borrower and its Subsidiaries;security interest. “Commodity Exchange Act” means
Appears in 1 contract
Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except:
(a) the Obligations;
(b) Senior Notes in an aggregate principal amount not to exceed $4,350,000,000;
(c) Indebtedness of any Guarantor Subsidiary of Borrower to Borrower or to any other such Subsidiary Guarantor Subsidiary, or of Borrower to any of its SubsidiariesGuarantor Subsidiary; provided that provided, (i) all such Indebtedness, if owed to a Credit Party, Indebtedness shall be evidenced by the Intercompany Note or another promissory note and Note, which shall be subject to a First Priority Lien pursuant to the applicable Collateral DocumentPledge and Security Agreement, (ii) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of a subordination agreement with respect to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness Intercompany Note, and (iii) any payment by any such Guarantor Subsidiary under any guaranty of the Obligations shall result in respect a pro tanto reduction of the amount of any Indebtedness owing owed by a such Subsidiary that is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d);
(d) Indebtedness incurred by Borrower or to any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) or from guaranties or letters of credit, surety bonds, performance bonds or similar obligations securing the performance of Borrower or any whose benefit such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or any of its Subsidiariespayment is made;
(ec) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal or similar obligations incurred in the ordinary course of business;
(fd) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accountsaccounts incurred in the ordinary course of business;
(ge) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees of and licensees to and of Borrower and its Subsidiaries;
(f) guaranties by Borrower of Indebtedness of a Guarantor Subsidiary or guaranties by a Guarantor Subsidiary of Indebtedness of Borrower or another Guarantor Subsidiary with respect, in each case, to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.1; provided, that if the Indebtedness that is being guarantied is unsecured and/or subordinated to the Obligations, the guaranty shall also be unsecured and/or subordinated to the Obligations;
(g) (A) Prepetition Indebtedness described in Schedule 6.1, (B) the Existing First Lien Indebtedness, (C) the Existing Second Lien Indebtedness and (D) the Senior Notes;
(h) Indebtedness in respect of Hedge Agreements in existence on the Petition Date and entered into in the ordinary course of business and not for speculative purposes;
(i) Indebtedness with respect to Capital Leases in an aggregate amount (together with the aggregate amount of Indebtedness incurred pursuant to Section 6.1(j)) not to exceed at any time $2,500,000 outstanding;
(j) purchase money Indebtedness in an aggregate amount (together with the aggregate amount of Indebtedness incurred pursuant to Section 6.1(i)) not to exceed at any time $2,500,000 outstanding (including in connection with store shell construction in the ordinary course of business); provided, any such Indebtedness (A) shall be secured only by the asset acquired, constructed or improved in connection with the incurrence of such Indebtedness, and (B) shall constitute not less than 90% of the aggregate consideration paid with respect to such asset;
(k) Indebtedness of any Foreign Subsidiary to Borrower or any other Subsidiary (i) existing on the Petition Date or (ii) to the extent permitted as an Investment pursuant to Section 6.6(h); and
(l) other Indebtedness of Borrower and its Subsidiaries in an aggregate amount not to exceed at any time $2,000,000, provided that (i) such Indebtedness is unsecured and (ii) no such Indebtedness may be incurred and owing by a Foreign Subsidiary or an Inactive Entity; and
(m) Indebtedness incurred by Borrower or any of its Subsidiaries arising from customary agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guaranties or letters of credit, surety bonds or performance bonds securing the performance of Borrower or any such Subsidiary pursuant to such agreements, in connection with dispositions permitted pursuant to Section 6.8 of any business, assets or Subsidiary of Borrower or any of its Subsidiaries.
Appears in 1 contract
Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectlyIncur, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect permit to exist any Indebtedness, except:
(a) the Obligations[Reserved];
(b) Senior Notes in an aggregate principal amount not Indebtedness created hereunder and under the other Loan Documents and any Permitted Refinancing Indebtedness incurred to exceed $4,350,000,000Refinance such Indebtedness;
(c) Indebtedness of the Borrower and any Subsidiary pursuant to Swap Agreements (excluding any Swap Agreements entered into for speculative purposes, which shall not be permitted);
(d) Indebtedness of the Borrower or any Subsidiary owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or 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 obligations regarding workers’ compensation claims, such obligations are reimbursed not later than thirty (30) days following such incurrence;
(e) Indebtedness of the Borrower to any Subsidiary or Indebtedness of any Subsidiary to the Borrower or any other such Subsidiary or 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 the Borrower and the Subsidiaries to finance working capital needs of the Borrower and the Subsidiaries, Indebtedness of any of its Subsidiaries; provided that (i) all such Indebtedness, if owed to a Credit Party, shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral Document, (ii) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Loan Party owing to the Loan Parties shall be subject to Section 9.03 [Investments, Loans and Advances] and Indebtedness of the Borrower to any Subsidiary and Indebtedness of any other Loan Party to any Subsidiary that is not a Loan Party (the “Subordinated Intercompany Debt”) shall, if legally permissible and requested by the Administrative Agent (instructed by the Required Lenders), be subordinated to the Loan Document Obligations and the Guarantees of the Loan Document Obligations on terms reasonably satisfactory to the Administrative Agent and the Lenders;
(f) Indebtedness of the Borrower or any Subsidiary in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business consistent with past practice;
(g) Indebtedness of the Borrower or a Subsidiary 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;
(h) 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”, seller notes or similar obligations and mark to market adjustments with respect to the foregoing), in each case, incurred or assumed in connection with any Permitted Business Acquisition or the disposition of any business, assets or any Subsidiary not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or any Subsidiary for the purpose of financing such acquisition in an aggregate principal amount outstanding that at the time of, and after giving effect to, the incurrence thereof would not in the aggregate exceed $5.0 million;
(i) Indebtedness of the Borrower or any Subsidiary 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;
(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;
(k) Indebtedness in respect of or arising under any bankers’ acceptance, bank guarantees, letter of credit, surety or any other instrument issued by a bank or financial institution, warehouse receipt or similar facilities entered into in the ordinary course of business 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 or similar obligations;
(i) unsecured Indebtedness in respect of obligations of the Borrower or any Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided, that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within sixty (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 and (ii) other unsecured Indebtedness provided that (a) the Weighted Average Life to Maturity of such unsecured Indebtedness is not shorter than the Weighted Average Life to Maturity of the Loans, (b) the maturity of such unsecured Indebtedness is not earlier than 90 days after the latest Maturity Date then in effect, (c) such unsecured Indebtedness shall be expressly subordinated in right of payment to the payment in full Loan Document Obligations and the Guarantees of the Loan Document Obligations pursuant on terms reasonably satisfactory to the terms Administrative Agent and the Lenders, (d) no such unsecured Indebtedness shall have different obligors than the Loans, (e) such unsecured Indebtedness (including any guarantee thereof) is not secured by any Lien on any property or assets of a subordination agreement with respect to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness Borrower or its Subsidiaries, and (iiif) such unsecured Indebtedness does not require any scheduled payment of principal or mandatory redemption or redemption at the option of the holders thereof (except for redemptions in respect of asset sales, changes in control or similar events on the date of issuance and any Indebtedness owing by a Subsidiary payment that is not a Credit Party intended to a Credit Party, prevent any such unsecured Indebtedness is permitted from being treated as an Investment under “applicable high yield discount obligation” within the proviso meaning of Section 163(i)(1) of the Bankruptcy Code) prior to Section 6.6(d)the latest Maturity Date in effect as of the time such unsecured Indebtedness incurred;
(dm) Indebtedness incurred by representing deferred compensation to employees or other service providers of the Borrower or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) or from guaranties or letters of credit, surety bonds, performance bonds or similar obligations securing the performance of Borrower or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or any of its Subsidiaries;
(e) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal or similar obligations incurred in the ordinary course of business;
(fn) Indebtedness after the Closing Date of the Borrower or any Subsidiary incurred (i) under cash management services (including, but not limited to, intraday, ACH and purchasing card/T&E services) and (ii) under lines of credit or overdraft facilities extended by one or more financial institutions reasonably acceptable to the Administrative Agent or by one or more of the Lenders and (in each case) established for the Subsidiaries’ ordinary course of operations;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Subsidiary to current or former officers, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 9.05 [Dividends and Distributions];
(p) Indebtedness consisting of obligations of the Borrower or any Subsidiary under deferred compensation or other similar arrangements incurred by such person in connection with Permitted Business Acquisitions or any other Investment permitted hereunder;
(q) Indebtedness incurred by the Borrower where the lender of such Indebtedness is a Parent Entity of the Borrower; provided that prior to the incurrence of such Indebtedness, the Borrower and such Parent Entity shall execute and deliver to the Administrative Agent a subordination agreement in form and substance satisfactory to the Administrative Agent;
(r) [Reserved];
(s) other Indebtedness of the Borrower or any Subsidiary; provided, that the aggregate principal amount of such Indebtedness incurred shall not exceed the greater of (x) the sum of (1) $100.0 million minus the outstanding principal amount of the Loans and (2) the outstanding principal amount of Term Loans (not to exceed $550.0 million) and (y) 100% of EBITDA (calculated on a Pro Forma Basis for the then most recently ended Test Period, based on the financial statements delivered to the Administrative Agent pursuant to Section 8.04(a) [Financial Statements, Reports, etc.] or (b)); provided, that, in order to incur additional Indebtedness in reliance of this clause (s), to the extent such Financial Covenants are in effect, (x) the Borrower is in compliance with each of the Financial Covenants on a Pro Forma Basis for the then most recently ended Test Period, based on the financial statements delivered to the Administrative Agent pursuant to Section 8.04(a) [Financial Statements, Reports, etc.] or (b) and (y) the Sponsor Guarantor is in compliance with each of the Sponsor Financial Covenants on a Pro Forma Basis for the then most recently ended Test Period, based on the financial statements delivered to the Administrative Agent pursuant to Section 3.2(b)(A) or (B) of the Sponsor Guarantee;
(t) any other Indebtedness consented to by the Required Lenders (such consent not to be unreasonably withheld);
(u) [reserved];
(i) Capital Lease Obligations, mortgage financings and other purchase money Indebtedness incurred by the Borrower or any Subsidiary prior to or within 270 days after any acquisition, lease, construction, repair, replacement or improvement of the respective property (real or personal, and whether through the direct purchase of property or the Equity Interests of any person owning such property) otherwise permitted under this Agreement in order to finance such acquisition, lease, construction, repair, replacement or improvement, in an aggregate principal amount outstanding that at the time of, and after giving effect to, the incurrence thereof (together with the aggregate amount of any other Indebtedness outstanding pursuant to this clause (i) and any Permitted Refinancing Indebtedness in respect of netting services, overdraft protections Indebtedness initially incurred under this clause (i) that is incurred under clause (ii) hereof) would not in the aggregate exceed $5.0 million and otherwise (ii) any Permitted Refinancing Indebtedness in connection with deposit accounts;respect thereof; and
(gw) guaranties all premium (if any), interest (including post-petition interest and interest paid in kind), fees, expenses, charges and additional or contingent interest on obligations described in paragraphs (a) through (t) above. For purposes of determining compliance with this Section 9.01 [Indebtedness], (A) Indebtedness need not be permitted solely by reference to one category of permitted Indebtedness described in Sections 9.01(a) through (u) [Indebtedness] but may be permitted in part under any combination thereof and (B) in the ordinary course event that an item of business Indebtedness (or any portion thereof) meets the criteria of one or more of the obligations categories of supplierspermitted Indebtedness described in Sections 9.01(a) [Indebtedness] through (v), customersthe Borrower shall, franchisees 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 9.01 [Indebtedness] and licensees will only be required to include the amount and type of Borrower such item of Indebtedness (or any portion thereof) in one of the above clauses and its Subsidiaries;such item of Indebtedness shall be treated as having been incurred or existing pursuant to only one of such clauses. In addition, with respect to any Indebtedness that was permitted to be incurred hereunder on the date of such incurrence, any Increased Amount of such Indebtedness shall also be permitted hereunder after the date of such incurrence. Notwithstanding anything to the contrary contained in this Section 9.01 [Indebtedness] above (x), no Indebtedness incurred pursuant to this Section 9.01 [Indebtedness] shall rank senior in right of payment to the Loan Document Obligations, except for Indebtedness incurred by non-Loan Parties or by Loan Parties in reliance of clauses (i), (k), (n), (s) (other than the Indebtedness evidenced by the Term Loans), (t) (to the extent consented to by the Required Lenders), (v) and (w) (to the extent related to the foregoing clauses only), (y) Term Loans under the Term Loan Credit Agreement (and unused commitments thereunder) and indebtedness under the Israel Grants may only be incurred in reliance of clause (s) above, and (z) any Indebtedness that is incurred pursuant to this Section 9.01 above that is in the form of contractually subordinated Indebtedness shall not mature prior to the date that is ninety-one (91) days after the latest Maturity Date then in effect at the time of incurrence of such Indebtedness.
Appears in 1 contract
Sources: Revolving Credit Facility (Meridian Bioscience Inc)
Indebtedness. No Credit Party shallBorrower will not, nor shall it and will not permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, guaranty or otherwise become or remain directly or indirectly liable with respect to any IndebtednessIndebtedness for borrowed money (including in the form of Disqualified Stock), exceptexcept for:
(a) Permitted Debt of a Loan Party and any Guarantees of a Loan Party in respect thereof; provided that any Permitted Debt shall (i) not be secured other than as permitted by clause (1) of the definition of Permitted Liens and (ii) not be subject to or benefit from any Guarantee by any Person that does not also Guarantee the Obligations; provided, further, that any Permitted Debt that is unsecured shall be pari passu in right of payment with the Obligations or subordinated in right of payment with the Obligations, with any such subordinated obligation on terms reasonably satisfactory to the Administrative Agent;
(b) Senior Notes Junior Lien Indebtedness of the Loan Parties and any Guarantees of a Loan Party in respect thereof; provided that either (i) such Junior Lien Indebtedness is Permitted Refinancing Indebtedness in respect of Permitted Debt, (ii) the aggregate amount of any such Junior Lien Indebtedness shall not exceed an aggregate principal amount of $5 million at any time outstanding or (iii) such Junior Lien Indebtedness is Permitted Refinancing Indebtedness in respect of any Indebtedness incurred pursuant to clause (i) or (ii) above (or any successive Permitted Refinancing Indebtedness); provided, further, that any Junior Lien Indebtedness shall not be secured other than as permitted by clause (2) of the definition of Permitted Liens;
(c) [reserved];
(d) unsecured Indebtedness of the Loan Parties that is Permitted Refinancing Indebtedness in respect of either Permitted Debt or Junior Lien Indebtedness (or any successive Permitted Refinancing Indebtedness) and any Guarantees of a Loan Party in respect of any of the foregoing; provided that (i) such Indebtedness shall not be subject to or benefit from any Guarantee by any Person that does not also Guarantee the Obligations, (ii) such Indebtedness shall be pari passu in right of payment with the Obligations or subordinated in right of payment with the Obligations, with any such subordinated obligation on terms reasonably satisfactory to the Administrative Agent and (iii) in the event such Indebtedness being Guaranteed is subordinated in right of payment to the Loans, then the related Guarantee shall be subordinated in right of payment to the Loans or the Guarantees guaranteeing the Loans, as the case may be;
(e) unsecured Indebtedness of Borrower and its Subsidiaries in an aggregate principal amount not to exceed $4,350,000,0005 million at any time outstanding;
(cf) Indebtedness of any Subsidiary of Borrower to Borrower or any other such Subsidiary or of Borrower to any of its Subsidiaries; provided that (i) all such Indebtedness, if owed to a Credit Party, shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral Document, (ii) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of a subordination agreement with respect to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness and (iii) in respect of any Indebtedness owing by a Subsidiary that is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d);
(d) Indebtedness incurred by Borrower or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) or from guaranties or letters of credit, bank guarantees, bankers’ assurances or acceptances, surety bonds, performance insurance bonds or and similar obligations securing the performance of Borrower or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or any of its Subsidiaries;
(e) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal or similar obligations incurred instruments entered into in the ordinary course of business;
(fg) Hedging Obligations in respect of Hedging Agreements that are not for speculative purposes;
(h) Indebtedness of Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including sale and lease back transactions, 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) such Indebtedness is incurred in connection with such sale and lease back prior to or within 180 days after such acquisition or the completion of such construction or improvement and (ii) the aggregate principal amount of Indebtedness permitted by this Section 6.02(h) shall not exceed $5.0 million at any time outstanding;
(i) Indebtedness in respect of netting services(a) the Existing Letter of Credit Facilities not to exceed $10 million and (b) for the avoidance of doubt, overdraft protections and any letter of credit in favor of the EETC Secured Parties obtained in respect of amounts that would otherwise be required to be held in connection with deposit accountsthe EETC Liquidity Reserve Account under the EETC Documentation;
(gj) guaranties [reserved];
(k) [reserved];
(l) Indebtedness incurred pursuant to Section 8a of the German Old Age Employees Retirement Act (Altersteilzeitgesetz) or Section 7e of the Fourth Book of the German Social Security Code IV (Sozialgesetzbuch IV);
(m) unsecured Guarantees of (i) Indebtedness for borrowed money permitted by this Section 6.02 or (ii) other Indebtedness not constituting Indebtedness for borrowed money; provided that such Guarantee of such Indebtedness is not prohibited by the terms of this Agreement; provided, further, that in the ordinary course event such Indebtedness being guaranteed is subordinated to the Loans, then the related Guarantee shall be subordinated in right of business of payment to the obligations of suppliersLoans or the Guarantees guaranteeing the Loans, customers, franchisees of and licensees to and of as the case may be; and
(n) intercompany Indebtedness among Borrower and its Subsidiaries;; provided that (i) any such Indebtedness owing by a Loan Party shall be subordinated to the Obligations pursuant to an Intercompany Loan Subordination Agreement or otherwise on terms reasonably satisfactory to the Administrative Agent and (ii) any such intercompany Indebtedness shall be evidenced by an Intercompany Loan Subordination Agreement pursuant to the provisions contained therein. For the avoidance of doubt, a permitted refinancing in respect of Indebtedness incurred pursuant to a Dollar-denominated basket shall not increase capacity to incur Indebtedness under such Dollar-denominated basket, and such Dollar-denominated basket shall be deemed to continue to be utilized by the amount of the original Indebtedness incurred unless and until the Indebtedness incurred to effect such permitted refinancing is no longer outstanding. Notwithstanding anything to the contrary set forth herein, for so long as any Subsidiary of the Borrower is not a Loan Party, such Subsidiary shall not be permitted to guarantee or incur any Indebtedness, Disqualified Stock or obligations other than (x) Indebtedness permitted to be incurred pursuant to Section 7.01 (except for Indebtedness permitted to be incurred under Section 7.01(b), (e), (h) or (i)) and (y) any other Indebtedness or obligations consented to by the Required Lenders. It is agreed and understood that, from and after the date on which the Existing Credit Agreement has been repaid in full and all commitments thereunder have been terminated, for so long as any Term Loans are outstanding hereunder, (i) any Indebtedness of the Borrower or its Subsidiaries for borrowed money outside of the ordinary course proposed by the Required Lenders will be first offered by the Borrower to the existing Lenders on a pro rata basis based on their existing Term Loans, (ii) each Lender will respond to such offer within 10 Business Days and to the extent any Lender does not respond within such 10 Business Day period, such Lender shall be deemed to have declined the offer to participate and (iii) any declined amounts may be offered by the Borrower on a non-pro rata basis to any other Person reasonably satisfactory to the Required Lenders, including the Lenders who elect to participate in such Indebtedness.
Appears in 1 contract
Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except:
(a) the Obligations;
(b) Senior Notes Indebtedness in an aggregate principal amount not to exceed $4,350,000,000;
respect of Investments permitted under Sections 6.6(b), (cd), (e) Indebtedness of any Subsidiary of Borrower to Borrower or any other such Subsidiary or of Borrower to any of its Subsidiariesand (f); provided that provided, (i) all such IndebtednessIndebtedness shall be evidenced by the Intercompany Note, and, if owed to a Credit Party, shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral DocumentPledge and Security Agreement, (ii) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of a subordination agreement with respect to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness Intercompany Note and (iii) any payment by any such Guarantor Subsidiary under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to Borrower or to any of its Subsidiaries for whose benefit such payment is made;
(c) prior to the Exit Facility Conversion Date, Indebtedness in respect of any Indebtedness owing by a Subsidiary that is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d)Senior Notes;
(d) Indebtedness incurred by Borrower Holdings or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) obligations, or from guaranties or letters of credit, surety bonds, bonds or performance bonds or similar obligations securing the performance of Borrower or any such Subsidiary pursuant to such agreements, agreements in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower Holdings or any of its Subsidiaries;
(e) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal or similar obligations incurred in the ordinary course of business;
(f) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accounts;
(g) on and after the Exit Facility Conversion Date, guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees of and licensees to and of Borrower and its Subsidiaries;
(h) on and after the Exit Facility Conversion Date, (i) guaranties by Borrower of Indebtedness of a Guarantor Subsidiary, (ii) guaranties by a Guarantor Subsidiary of Indebtedness of Borrower or another Guarantor Subsidiary or (iii) guaranties by a Foreign Subsidiary of Indebtedness of another Foreign Subsidiary, in each case, with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.1; provided, that if the Indebtedness that is being guarantied is unsecured and/or subordinated to the Obligations, the guaranty shall also be unsecured and/or subordinated to the Obligations;
(i) Indebtedness described in Schedule 6.1, but not any extensions, renewals or replacements of such Indebtedness (it being understood that the principal amount of such Indebtedness may increase or decrease as a result of a change to the applicable currency rate then in effect) except, on and after the Exit Facility Conversion Date, (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not materially less favorable to the obligor thereon or to Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness, plus capitalized interest thereon, OID and related fees, being renewed, extended or refinanced or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(j) Indebtedness of Borrower or its Subsidiaries with respect to Capital Leases in an aggregate amount not to exceed (i) at any time prior to the Exit Facility Conversion Date, $5,000,000 and (ii) at any time thereafter, $7,500,000;
(k) purchase money Indebtedness of Borrower or its Subsidiaries in an aggregate amount not to exceed $30,000,000 at any time; provided, any such Indebtedness (i) shall be secured only by the asset acquired after the Petition Date in connection with the incurrence of such Indebtedness, and (ii) shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(l) Indebtedness (including letter of credit reimbursement obligations) of Borrower or its Subsidiaries with respect to leasing of rail cars constituting Capital Leases in an aggregate amount at any one time outstanding not to exceed $20,000,000;
(m) Indebtedness of one or more Credit Parties in respect of the Replacement Revolving Facility and Indebtedness of one or more Foreign Subsidiaries of Borrower in respect of one or more Alternative Facilities with one or more third parties in an aggregate principal amount outstanding not to exceed at any time $150,000,000 (less an amount equal to the original principal amount of the New Term Loans, if any, made hereunder (unless the Credit Parties have, substantially contemporaneously with obtaining such Replacement Revolving Facility and/or Alternative Facilities, prepaid the Loans with all or a portion of the proceeds of such Replacement Revolving Facility and/or Alternative Facilities (which prepayment shall be applied in accordance with Section 2.12(b) as if it were a mandatory prepayment hereunder), in which case the amount to be deducted from $150,000,000 shall be an amount equal to the difference between (1) the original principal amount of the New Term Loans, minus (2) the amount of Loans prepaid pursuant to this clause)); provided that,
(i) in respect of the Replacement Revolving Facility, the Credit Parties, the Collateral Agent and the Replacement Facility Agent shall enter into a Replacement Revolving Intercreditor Agreement and such Replacement Revolving Intercreditor Agreement shall be in full force and effect so long as any such Indebtedness remains outstanding; and
(ii) the terms and provisions of the Replacement Revolving Facility and any Alternative Facility shall be reasonably acceptable to Administrative Agent.
(n) Indebtedness in the form of deferred cash payment obligations undertaken pursuant to the Plan of Reorganization to Pre-Petition unsecured creditors with respect to their Claims;
(o) the financing of insurance premiums in customary amounts consistent with past practices;
(p) Indebtedness with respect to Standard Securitization Undertakings;
(q) Indebtedness of the Subsidiaries of Borrower organized in Germany with respect to German Old Age Part Time Workers Act (Altersteilzeitgesetz) in an aggregate principal amount not exceeding the U.S. dollar equivalent of €3,000,000;
(r) (i) in addition to letter of credit issued under any Replacement Revolving Facility and/or Alternative Facility, letters of credit issued for the account of Borrower or any of its Subsidiaries that are outstanding on the Closing Date (and renewals, extensions and replacements thereof) and (ii) other letters of credit issued for the account of Borrower or any of its Subsidiaries in an aggregate principal face amount not to exceed $10,000,000 at any time;
(s) on and after the Exit Facility Conversion Date, other unsecured Indebtedness of Borrower and its Subsidiaries in an aggregate amount not to exceed $15,000,000 at any time;
(t) to the extent constituting Indebtedness, the ▇▇▇▇▇▇▇▇▇ Sale-Leaseback and the Verve Sale-Leaseback and any similar arrangement with respect to the Savannah, Georgia facility; (u) (t) (i) Indebtedness under Currency Agreements for the purpose of hedging Australian Dollar/U.S. Dollar exposure and (ii) on and after the Exit Facility Conversion Date, Indebtedness under Eligible Commodity Hedging Agreements, Interest Rate Agreements and other Currency Agreements; provided, that such Eligible Commodity Hedging Agreements shall be unsecured;
Appears in 1 contract
Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except:
(a) the Obligations;
(b) Senior Notes in an aggregate principal amount not to exceed $4,350,000,000;
(c) Indebtedness of PubCo (incurred in connection with any Subsidiary Permitted Acquisition or otherwise consented to by Administrative Agent and Requisite Lenders) or of Borrower any Guarantor Subsidiary, in each case owing to Borrower a Company or to any other such Subsidiary Guarantor Subsidiary, or of Borrower a Company owing to any of its SubsidiariesGuarantor Subsidiary; provided that provided, (i) all such Indebtedness, if owed to a Credit Party, Indebtedness shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral DocumentSubordination, (ii) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment Payment in full Full of the all Obligations pursuant to the terms of a subordination agreement with respect to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties Intercompany Note and such Subsidiaries party to such Indebtedness Subordination, and (iii) any payment by PubCo or any such Guarantor Subsidiary under any guaranty of the Obligations shall result in respect a pro rata reduction of the amount of any Indebtedness owing owed by a such Guarantor Subsidiary that is not a Credit Party to a Credit Party, Company or to any of its Subsidiaries for whose benefit such Indebtedness payment is permitted as an Investment under the proviso to Section 6.6(d)made;
(dc) Indebtedness incurred by Borrower PubCo (in connection with a Permitted Acquisition), Holdings or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) customary indemnification or from customary guaranties or letters of credit, surety bonds, bonds or performance bonds or similar obligations securing the performance of Borrower the Companies or any such Subsidiary pursuant to such agreements, agreements in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower Holdings or any of its Subsidiaries;
(ed) Indebtedness which that may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal or similar bonds or statutory obligations incurred in the ordinary course of business, and guarantee obligations in respect of any such Indebtedness;
(e) Indebtedness in respect of netting services, overdraft protections and other services provided in connection with Deposit Accounts in the ordinary course of business;
(f) Indebtedness constituting accounts payable incurred in respect the ordinary course of netting servicesbusiness and not more than 60 days past due (excluding, overdraft protections for the avoidance of doubt, any inventory floorplan financing and otherwise excluding any accounts payable being disputed in connection with deposit accountsgood faith);
(g) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees of and licensees to and of Borrower Holdings and its Subsidiaries;
(h) guaranties by any Company of Indebtedness of a Guarantor Subsidiary or guaranties by a Subsidiary of any Company of Indebtedness of such Company or a Guarantor Subsidiary with respect, in each case, to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.1; provided, that if the Indebtedness that is being guaranteed is unsecured and/or subordinate to the Obligations (in payment or Lien priority), then such guaranties shall also be unsecured and/or subordinated to the Obligations to the same extent as such guaranteed Indebtedness;
(i) Indebtedness described on Schedule 6.1, but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions thereof, and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(j) Indebtedness in an aggregate amount not to exceed $5,000,000 (inclusive of any Indebtedness of similar types described on Schedule 6.1) at any time outstanding consisting of (x) Capital Lease Obligations and (y) other purchase money Indebtedness (including any Indebtedness acquired in connection with a Permitted Acquisition); provided, in the case of clause (x), that any such Indebtedness shall be secured only by the asset subject to such Capital Lease, and, in the case of clause (y), that any such Indebtedness shall (1) be secured only by the asset acquired in connection with the incurrence of such Indebtedness and (2) constitute not less than 50% of the aggregate consideration paid with respect to such asset;
(k) Indebtedness constituting Approved Subordinated Debt so long as (i) such Indebtedness is subject to subordination terms in form and substance satisfactory to Administrative Agent and Requisite Lenders and/or is structurally subordinated to the liabilities of the Companies in a manner satisfactory to Administrative Agent and Requisite Lenders and (ii) the aggregate outstanding principal amount of all such Indebtedness, at the time any such Indebtedness is incurred, does not exceed the Approved Subordinated Debt Cap after giving effect to such incurrence;
(l) Indebtedness constituting an Approved Floorplan Financing so long as (i) such Indebtedness is subject to the Intercreditor Agreement and (ii) the aggregate outstanding principal amount of all such Indebtedness does not exceed $500,000,000 at any time, unless otherwise consented to by Administrative Agent and Requisite Lenders;
(m) Indebtedness consisting of obligations under the TCF Agreement so long as the aggregate outstanding principal amount of all such Indebtedness does not exceed $1,000,000 at any time outstanding;
(n) Indebtedness incurred by any Credit Party for purposes of financing the premiums for insurance policies purchased by and for the benefit of any Credit Parties in the ordinary course of business; provided that such Indebtedness is on customary terms and is either unsecured or secured solely by Liens permitted by Section 6.2(p); and
(o) to the extent constituting Indebtedness, obligations in respect of Permitted TRA Payments, Deferred TRA Obligations, and other obligations pursuant to the Tax Receivable Agreement as in effect on the Closing Date.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (OneWater Marine Inc.)
Indebtedness. No Credit Party Borrower shall, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except:
(a) the ObligationsSecured Obligations (including any Additional Term Loans and any Additional Revolving Loans);
(b) Senior Notes Indebtedness of a Borrower to any Restricted Subsidiary and/or of any Restricted Subsidiary to a Borrower or any other Restricted Subsidiary (including the Intercompany Proceeds Loan); provided that in the case of any Indebtedness of any Restricted Subsidiary that is not a Loan Party owing to a Loan Party, such Indebtedness shall be permitted as an aggregate principal amount Investment by Section 6.06; provided further that any Indebtedness of any Loan Party to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to exceed $4,350,000,000the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (it being understood that the subordination provisions in the Global Intercompany Note are acceptable to the Administrative Agent);
(c) Indebtedness of any Subsidiary of Borrower to Borrower or any other such Subsidiary or of Borrower to any of its Subsidiaries; provided that (i) all such Indebtedness, if owed to a Credit Party, shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral Document, (ii) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of a subordination agreement with respect to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness and (iii) in respect of any Indebtedness owing by a Subsidiary that is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d)[Reserved];
(d) Indebtedness incurred by Borrower or any of its Subsidiaries arising from agreements any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date or any other purchase of assets or Capital Stock, and Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) or arising from guaranties or guaranties, letters of credit, bank guaranties, surety bonds, performance bonds or similar obligations instruments securing the performance of a Borrower or any such Restricted Subsidiary pursuant to any such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or any of its Subsidiariesagreement;
(e) Indebtedness which may be deemed to exist of any Borrower and/or any Restricted Subsidiary (i) pursuant to any guarantiestenders, performancestatutory obligations, bids, leases, governmental contracts, trade contracts, surety, statutorystay, appeal customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
(f) Indebtedness of any Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including Banking Services Obligations and dealer incentive, supplier finance or similar programs;
(i) guaranties by any Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of any Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and 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;
(fh) Guarantees by any Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrowers, 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 respect the case of netting servicesany Guarantee by any Loan Party of the obligations of any non-Loan Party, overdraft protections and otherwise in connection with deposit accountsthe related Investment is permitted under Section 6.06;
(gi) guaranties Indebtedness of any Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and described on Schedule 6.01;
(j) Indebtedness of Restricted Subsidiaries that are not Loan Parties; provided that the aggregate outstanding principal amount of such Indebtedness shall not exceed the greater of $50,000,000 and 10.0% of Consolidated Total Assets as of the last day of the most recently ended Test Period;
(k) Indebtedness of any 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 any Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums in the ordinary course of business, (ii) take-or-pay obligations contained in supply arrangements in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of any Borrower and/or any Restricted Subsidiary with respect to Capital Leases and purchase money Indebtedness incurred prior to or within 270 days of the obligations acquisition, lease, completion of suppliersconstruction, customersrepair of, franchisees replacement, improvement to or installation of assets acquired in connection with the incurrence of such Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $50,000,000 and licensees 10.0% of Consolidated Total Assets as of the last day of the most recently ended Test Period;
(n) Indebtedness consisting of an asset-based revolving credit facility or other indebtedness under debt instruments with availability subject to a borrowing base formula based on the aggregate value of the Borrowers’ and their Restricted Subsidiaries’ inventory and accounts receivable (excluding any Securitization Assets subject to a Permitted Securitization Financing), subject, in each case, to customary advance rates and exclusionary criteria with aggregate commitments in an amount not to exceed, on the date of incurrence, such borrowing base (the “Replacement ABL Facility”); provided that no such Replacement ABL Facility shall be permitted hereunder at any time that the Revolving Facility and/or any Additional Revolving Facility (or any Replacement Revolving Facility or other permitted refinancing thereof) is in effect;
(o) Indebtedness consisting of unsecured subordinated promissory notes in form and substance reasonably satisfactory to the Administrative Agent issued by a 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, Borrower or any subsidiary (or their respective Immediate Family Members) and not guaranteed by any Subsidiary of Holdings to finance the purchase or redemption of Capital Stock of any Parent Company permitted by Section 6.04(a);
(p) each Borrower and its SubsidiariesRestricted Subsidiaries may become and remain liable for any Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (j), (m), (n), (q), (r), (u), (v), (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 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, (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 under Section 6.01 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 and constitutes a utilization of the relevant basket or exception), (ii) other than in the case of Refinancing Indebtedness with respect to clause (i), (m) or (u), (A) such Indebtedness has a final maturity on or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) other than with respect to revolving Indebtedness, such Indebtedness 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, (iii) the terms of any Refinancing Indebtedness with an original principal amount in excess of the Threshold Amount (excluding pricing, fees, premiums, rate floors, optional prepayment or redemption terms (and, if applicable, subordination terms) and, with respect to Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) above, security), are not, taken as a whole (as reasonably determined by the Borrower Representative), more favorable to the lenders providing such Indebtedness than those applicable to the Indebtedness being refinanced, refunded or replaced (other than any covenants or any other provisions applicable only to periods after the Latest Maturity Date as of such date or any covenants or provisions which are then-current market terms for the applicable type of Indebtedness), (iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (j), (m), (u) and (y) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause (and such Refinancing Indebtedness shall be deemed to be outstanding under such clause for purposes of determining compliance therewith), (v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 (it being understood that Holdings may not be the primary obligor of the applicable Refinancing Indebtedness if Holdings was not the primary obligor on the relevant refinanced Indebtedness), (A) such Indebtedness is secured only by Permitted Liens securing the Indebtedness being refinanced, refunded or replaced at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), (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 and (C) if the Indebtedness being refinanced, refunded or replaced was originally contractually subordinated to the Obligations in right of payment (or the Liens securing such Indebtedness were originally contractually subordinated to the Liens on the Collateral securing the Secured Obligations), such Indebtedness is contractually subordinated to the Obligations in right of payment (or the Liens securing such Indebtedness are subordinated to the Liens on the Collateral securing the Secured Obligations) on terms not materially less favorable (as reasonably determined by the Borrower Representative), taken as a whole, to the Lenders than those applicable to the Indebtedness (or Liens, as applicable) being refinanced, refunded or replaced, taken as a whole, (vi) except in the case of Refinancing Indebtedness with respect to clause (a) of this Section 6.01, as of the date of the incurrence of such Indebtedness and after giving effect thereto, no Event of Default exists, (vii) in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01, (A) such Indebtedness shall rank pari passu or junior in right of payment and shall be secured by all or portion of the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or shall be unsecured; provided that any such Indebtedness that ranks pari passu or junior with respect to the Collateral shall be subject to a Permitted Pari Passu Intercreditor Agreement or a Permitted Junior Intercreditor Agreement, as applicable, (B) if the Indebtedness being refinanced, refunded or replaced is secured, it is not secured by any assets other than the Collateral (but need not be secured by all such assets), (C) if the Indebtedness being refinanced, refunded or replaced is Guaranteed, it shall not be Guaranteed by any Person other than a Loan Party (but need not be Guaranteed by all such Persons), (D) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, (E) any such Indebtedness that ranks pari passu with the Initial Term Loans hereunder in right of payment and secured by all or a portion of the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any voluntary or mandatory prepayment in respect of the Initial Term Loans (and any Additional Term Loans then subject to ratable repayment requirements), in each case as the applicable Borrower and the relevant lender may agree and (F) the Indebtedness being refinanced, refunded or replaced shall be repaid, defeased or satisfied and discharged, and all accrued interest, fees and premiums (if any) in connection therewith, shall be paid, in each case substantially concurrently with the issuance of such Refinancing Indebtedness and (viii) no Borrower nor any of its Restricted Subsidiaries may refinance any Indebtedness incurred by an Unrestricted Subsidiary pursuant to this clause;
(q) Indebtedness incurred to finance acquisitions permitted hereunder after the Closing Date, or Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition permitted hereunder after the Closing Date; provided that (i) before and after giving effect to such acquisition on a Pro Forma Basis, no Event of Default exists, (ii) after giving effect to such acquisition on a Pro Forma Basis, (A) if such Indebtedness is secured by a Lien on all or any portion of the Collateral that ranks pari passu with the Lien securing the Secured Obligations, the First Lien Leverage Ratio would not exceed the greater of (x) 3.00:1.00 and (y) the First Lien Leverage Ratio as of the last day of the most recently ended test period (in each case, calculated without “netting” the Cash proceeds of such Indebtedness), it being understood and agreed that any indebtedness incurred under this clause (A), together with any permitted refinancing indebtedness (and successive permitted refinancing indebtedness) with respect thereto, shall at all times be included in the calculation of the First Lien Leverage Ratio unless such Indebtedness is separately justified under clause (B) below or (B) if such Indebtedness is secured by a Lien on all or any portion of the Collateral that ranks junior to the Lien securing the Secured Obligations or is unsecured, the Total Leverage Ratio would not exceed the greater of (x) 4.50:1.00 and (y) the Total Leverage Ratio as of the last day of the most recently ended Test Period (in each case, calculated without “netting” the Cash proceeds of such Indebtedness), provided that (1) such Indebtedness does not mature or require any scheduled amortization or scheduled payment of principal or require any mandatory redemption, repurchase, repayment or sinking fund obligation (other than (A) payments as part of an “applicable high yield discount obligation” catch-up payment, (B) customary offers to repurchase in connection with any change of cont
Appears in 1 contract
Sources: Credit Agreement (Indivior PLC)
Indebtedness. No Credit Party shall, nor (a) Borrower and Guarantors shall it not and Borrower will not permit any of its Subsidiaries to, directly or indirectly, create, incur, assume assume, guarantee, acquire, become liable, contingently or guarantyotherwise, with respect to, or otherwise become responsible for payment of (collectively, "incur") any Indebtedness (other than Permitted Indebtedness); provided, that, if no Default or remain directly Event of Default shall have occurred and be continuing at the time of or indirectly liable with respect to as a consequence of the incurrence of any such Indebtedness, except:
Borrower or any of its Restricted Subsidiaries that is or, upon such incurrence, becomes a Guarantor may incur Indebtedness (aincluding, without limitation, Acquired Indebtedness) and any Restricted Subsidiary of Borrower that is not or will not, upon such incurrence, become a Guarantor may incur Acquired Indebtedness, in each case if on the Obligations;date of the incurrence of such Indebtedness, after giving effect to the incurrence thereof, the Indebtedness to Cash Flow Ratio of Borrower would not have exceeded 4.5 to 1.0.
(b) Senior Notes in an aggregate principal amount Borrower and Guarantors will not, and Borrower will not to exceed $4,350,000,000;
permit any Restricted Subsidiary to, directly or indirectly, incur any Indebtedness which by its terms (c) Indebtedness or by the terms of any Subsidiary of Borrower to Borrower or any other such Subsidiary or of Borrower to any of its Subsidiaries; provided that (i) all agreement governing such Indebtedness, if owed to a Credit Party, shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral Document, (ii) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured and expressly subordinated in right of payment to any other Indebtedness of Borrower or such Guarantor, as the case may be, unless such Indebtedness is also by its terms (or by the terms of any agreement governing such Indebtedness) made expressly subordinate to the payment in full of the Obligations pursuant to the terms extent and in the same manner as such indebtedness is subordinated to other indebtedness of a subordination agreement with respect the Borrower or such Guarantor, as the case may be. For purposes of the foregoing, no Indebtedness will be deemed to be subordinated in right of payment to any other Indebtedness of Borrower or any Guarantor solely by virtue of such Indebtedness substantially being unsecured or by virtue of the fact that the holders of such Indebtedness have entered into one or more intercreditor agreements giving one or more of such holders priority over the other holders in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness and (iii) in respect of any Indebtedness owing collateral held by a Subsidiary that is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d);them.
(dc) Indebtedness incurred by Notwithstanding the foregoing or any other provision of this Agreement, Borrower or will not, and will not permit any of its Subsidiaries arising from agreements providing for indemnificationto, adjustment directly or indirectly, incur any Indebtedness, the proceeds of purchase price which will be used, directly or similar obligations indirectly, to redeem, repurchase or otherwise retire the Convertible Preferred Stock (including Indebtedness consisting or any replacement, refunding or renewal thereof) on or prior to the expiration of the deferred purchase price initial term of property acquired this Agreement set forth in a Permitted Acquisition) or from guaranties or letters of credit, surety bonds, performance bonds or similar obligations securing the performance of Borrower or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or any of its Subsidiaries;
(e) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal or similar obligations incurred in the ordinary course of business;
(f) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accounts;
(g) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees of and licensees to and of Borrower and its Subsidiaries;Section 12.1 hereof.
Appears in 1 contract
Indebtedness. No Credit (a) The Borrower (i) shall not, and shall not permit any other Specified Loan Party shallto, nor and by its execution hereof the Parent Guarantor agrees that it shall not, assume, create, incur or suffer to exist any Indebtedness to the Parent Guarantor or any of its Subsidiaries unless such Indebtedness is fully subordinated to the Obligations on terms satisfactory to the Administrative Agent and (ii) shall not permit any Subsidiary Guarantor or Operating Lessee to create, assume, incur or suffer to exist any Indebtedness other than (A) as permitted in clause (i), (B) the Obligations, (C) trade payables and equipment leases that are normal and customary both as to their terms and as to their amounts and (D) Guaranties of Franchise Agreements or Management Agreements entered into in the ordinary course of business.
(b) Except as permitted pursuant to Section 10.1(e) hereof, the Borrower shall not, and shall not permit any other Specified Loan Party or any of its or their respective Subsidiaries to, and by its execution hereof the Parent Guarantor agrees that it shall not and shall not permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or guarantyprepay any principal of, or accrued interest on, any Subordinated Debt or otherwise become make any voluntary or remain directly or indirectly liable optional payment with respect to any Indebtednessprincipal of, except:
(a) or accrued interest on, any Subordinated Debt prior to the Obligations;
(b) Senior Notes in an aggregate principal amount originally scheduled maturity date thereof or otherwise redeem or acquire for value any Subordinated Debt. Further, the Borrower shall not, and shall not to exceed $4,350,000,000;
(c) Indebtedness of any Subsidiary of Borrower to Borrower or permit any other such Subsidiary or of Borrower to any of its Subsidiaries; provided that (i) all such Indebtedness, if owed to a Credit Party, shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral Document, (ii) all such Indebtedness owing by a Credit Specified Loan Party to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of a subordination agreement with respect to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness and (iii) in respect of any Indebtedness owing by a Subsidiary that is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d);
(d) Indebtedness incurred by Borrower or any of its or their respective Subsidiaries arising from agreements providing for indemnificationto, adjustment of purchase price or similar obligations (including Indebtedness consisting of and by its execution hereof the deferred purchase price of property acquired in a Permitted Acquisition) or from guaranties or letters of credit, surety bonds, performance bonds or similar obligations securing the performance of Borrower or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or Parent Guarantor agrees that it shall not and shall not permit any of its SubsidiariesSubsidiaries to, amend or modify, or permit the amendment or modification of, any agreement or instrument evidencing any Subordinated Debt where such amendment or modification provides for the following or which has any of the following effects:
(i) increases the rate of interest accruing on such Subordinated Debt;
(eii) Indebtedness increases the amount of any scheduled installment of principal or interest, or shortens the date on which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal such installment or similar obligations incurred in the ordinary course of businessprincipal or interest becomes due;
(fiii) Indebtedness in respect shortens the final maturity date of netting services, overdraft protections and otherwise in connection with deposit accountssuch Subordinated Debt;
(giv) guaranties increases the principal amount of such Subordinated Debt;
(v) amends any financial or other covenant contained in any document or instrument evidencing any Subordinated Debt in a manner which is more onerous to the ordinary course Borrower, such Loan Party or such Subsidiary or which requires the Borrower, such Loan Party or such Subsidiary to improve its financial performance;
(vi) provides for the payment of business additional fees or the increase in existing fees; and/or
(vii) otherwise could reasonably be expected to be adverse to the interests of the obligations of suppliers, customers, franchisees of and licensees to and of Borrower and its Subsidiaries;Administrative Agent or the Lenders.
Appears in 1 contract
Indebtedness. No Credit Loan Party shall, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except:
(a) the Obligations, so long as, with respect to Derivative Transactions, that such Obligations are not entered into for speculative purposes;
(b) Senior Notes Indebtedness of any Loan Party owed to any other Loan Party or Restricted Subsidiary; provided that in the case of any Indebtedness of any Restricted Subsidiary that is not a Loan Party owing to any Loan Party, such Indebtedness shall be permitted as an aggregate principal amount Investment under Section 7.3; provided, further, that any Indebtedness of any Loan Party to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to exceed $4,350,000,000the Obligations of such Loan Party on terms that are reasonably acceptable to the Agent;
(c) unsecured Indebtedness of any Subsidiary of Borrower to Borrower or any other such Subsidiary or of Borrower to any of its Subsidiaries; provided that (i) all such Indebtedness, if owed to a Credit Party, shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral Document, (ii) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of a subordination agreement with respect to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness and (iii) in respect of any Indebtedness owing by a Subsidiary that is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d);
(d) Indebtedness incurred by Borrower or any of its Subsidiaries arising from agreements any agreement providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired seller notes and contingent earn-out obligations) incurred in a connection with any Disposition permitted hereunder or any Permitted Acquisition; provided that the aggregate principal amount of such Indebtedness shall not to exceed $30,000,000 outstanding at any time;
(d) Indebtedness of any Loan Party and/or any Restricted Subsidiary thereof (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or from guaranties or other similar obligations incurred in the Ordinary Course of Business and (ii) in respect of any letters of credit, bank guaranties, surety bonds, performance bonds or similar obligations securing the performance of Borrower or any such Subsidiary pursuant instruments to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or support any of its Subsidiariesthe foregoing items;
(e) Indebtedness which may be deemed to exist pursuant of any Loan Party and/or any Restricted Subsidiary thereof in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any guarantiesof the foregoing and/or otherwise in connection with Cash Management Products and Services and Deposit Accounts, performanceincluding banking services obligations and incentive, surety, statutory, appeal supplier finance or similar obligations incurred in the ordinary course of businessprograms;
(f) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accounts;
(gi) guaranties in the ordinary course of business Guarantees by any Loan Party or any Restricted Subsidiary thereof of the obligations of suppliers, customers, franchisees of customers and licensees in the Ordinary Course of Business, (ii) Indebtedness incurred in the Ordinary Course of Business in respect of obligations of any Loan Party 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, provided that to the extent any such Guarantee by a Loan Party of the obligations of a non-Loan Party constitutes an Investment, such Investment is permitted by Section 7.3, 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;
(g) Guarantees by any Loan Party and/or any Restricted Subsidiary of Indebtedness or other obligations of any other Loan Party and/or any Restricted Subsidiary thereof with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 7.6 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 7.3;
(h) Indebtedness of any Loan Party and/or any Restricted Subsidiary thereof existing, or pursuant to commitments existing, on the Closing Date and described on Schedule 7.6 and intercompany Indebtedness outstanding on the Closing Date;
(i) Indebtedness of Restricted Subsidiaries that are not Loan Parties; provided that the aggregate principal amount of such Non-Loan Party Indebtedness at the time incurred, together with all other outstanding Non-Loan Party Indebtedness, shall not exceed the Non-Loan Party Cap;
(j) Indebtedness of any Loan Party and/or any Restricted Subsidiary with respect to capital leases and Purchase Money Indebtedness (i) in an aggregate principal amount at the time incurred, together with the principal amount of all other outstanding Indebtedness incurred pursuant to this Section 7.6(j)(i), not to exceed the greater of (x) $150,000,000 and (y) seventy-five percent (75%) of Consolidated Adjusted EBITDA for the four Fiscal Quarter period most recently ended, (ii) outstanding as of the Fifth Amendment Effective Date (as such Indebtedness may be refinanced or replaced from time to time up to such outstanding amount as of the Fifth Amendment Effective Date); provided, that, such amount permitted under this Section 7.6(j)(ii), taken together with any ordinary course capital leases, purchase money indebtedness, equipment financings, real estate financings, letters of credit and surety bonds that were permitted to survive under Section 8.1(x)(B) on the Closing Date, shall not exceed an aggregate amount of $200,000,000, and (iii) with respect to any Loan Party and/or any Restricted Subsidiary that becomes a Loan Party, any such Indebtedness in an amount equal to the amount of any Indebtedness assumed, acquired, refinanced or repaid by such Loan Party and/or Restricted Subsidiary in connection with a Permitted Acquisition that is otherwise permitted under Section 7.6(k) (or would be so permitted if such Indebtedness were not refinanced or repaid in connection with such Permitted Acquisition); provided that, any such Indebtedness so assumed, acquired or refinanced shall be deemed to be a utilization of this Section 7.6(j)(iii) to the extent such Indebtedness (and any Refinancing Indebtedness thereof) remains outstanding;
(k) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed or acquired in connection with an acquisition permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation thereof, (ii) no Event of Default exists or would result from such acquisition, (iii) the Funded Debt to Consolidated Adjusted EBITDA Ratio does not exceed 4.25:1.00 calculated on a Pro Forma Basis and (iv) after giving effect to the assumption or acquisition thereof, the aggregate principal amount of Non-Loan Party Indebtedness at the time of the assumption or acquisition thereof, together with all other outstanding Non-Loan Party Indebtedness, does not exceed the Non-Loan Party Cap;
(l) Indebtedness consisting of promissory notes issued by any Loan Party or any Restricted Subsidiary thereof 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, any Loan Party or any subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Equity Interests of any Parent Company permitted by Section 7.5;
(m) any Loan Party and any Restricted Subsidiary thereof may become and remain liable for any Indebtedness refinancing, refunding or replacing any Indebtedness permitted under this clause (m) and clauses (a), (h), (i), (j), (k), (n), (o), (q), (s), (w) and (z) of this Section 7.6 (in any case, including any refinancing Indebtedness incurred in respect thereof, “Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that any refinancing, refunding or replacement of Indebtedness permitted under Section 7.6(i), (j), (n), (o), (s), (w) or (z) shall continue to constitute utilization of the applicable basket; provided further 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 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 (B) additional amounts permitted to be incurred pursuant to this Section 7.6 (so long as such Indebtedness is permitted to be incurred pursuant to a subsection of this Section 7.6, other than this Section 7.6(m), and, to the extent secured by Liens, such Liens are permitted to secure such Indebtedness pursuant to a subsection of Section 7.2, other than Section 7.2(k) and is deemed to constitute a utilization of the relevant basket or exception pursuant to which such additional amount is permitted),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (h), (j), (k), and/or (o) of this Section 7.6 such Indebtedness has 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 final maturity of the Indebtedness being refinanced, refunded or replaced,
(iii) the terms of any Refinancing Indebtedness (excluding pricing, fees, premiums, rate floors, optional prepayment or redemption terms (and, if applicable, subordination terms) and, with respect to Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) above, security), are not, taken as a whole (as reasonably determined by Borrowing Agent), more favorable to the lenders providing such Indebtedness than those applicable to the Indebtedness being refinanced, refunded or replaced (other than any covenants or any other provisions applicable only to periods after the Latest Maturity Date as of such date or any covenants or provisions which are then-current market terms for the applicable type of Indebtedness),
(iv) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 7.6, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that such secured Indebtedness may go from being secured to being unsecured), and, in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (n) of this Section 7.6, shall be secured solely by Excluded Real Property (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 Sections 7.2, 7.3 and 7.6 and (C) if the Indebtedness being refinanced, refunded or replaced was originally contractually subordinated to the Obligations in right of payment (or the Liens securing such Indebtedness were originally contractually subordinated to the Liens on the Collateral securing the Obligations), such Indebtedness is contractually subordinated to the Obligations in right of payment (or the Liens securing such Indebtedness are subordinated to the Liens on the Collateral securing the Obligations) on terms not materially less favorable (as reasonably determined by the Borrowing Agent), taken as a whole, to the Lenders than those applicable to the Indebtedness (or Liens, as applicable) being refinanced, refunded or replaced, taken as a whole,
(v) in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 7.6, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is pari passu or junior with respect to the Collateral shall be subject to an Acceptable Intercreditor Agreement, (B) if the Indebtedness being refinanced, refunded or replaced is secured, it is not secured by any assets other than the Collateral, (C) if the Indebtedness being refinanced, refunded or replaced is Guaranteed, it shall not be Guaranteed by any Person other than one or more Loan Parties and (D) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement; and
(vi) intercompany Indebtedness under Section 7.6(h) may only be refinanced, refunded or replaced with other intercompany Indebtedness;
(n) Indebtedness secured solely by a lien on any Excluded Real Property;
(o) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate principal amount at the time incurred, together with the principal amount of all other outstanding Indebtedness incurred pursuant to this Section 7.6(o), not to exceed the greater of (i) $25,000,000 and its Subsidiaries(ii) twelve and one-half percent (12.5%) of Consolidated Adjusted EBITDA for the four Fiscal Quarter period most recently ended;
(p) to the extent constituting Indebtedness, obligations arising under the Closing Date Merger Agreement;
(q) additional Indebtedness of any Loan Party and/or any Restricted Subsidiary so long as, after giving effect thereto, including the application of the proceeds thereof (but without “netting” cash proceeds of the applicable Indebtedness), (i) (A) if such Indebtedness is secured by a Lien on the Collateral that is pari passu with the Lien on the Collateral securing the Term Facility, the First Lien Leverage Ratio does not exceed 2.75:1.00, (2) if such Indebtedness is secured by a Lien on the Collateral that is junior to the Lien on the Collateral securing the Term Facility, the Secured Leverage Ratio does not exceed 3.25:1.00 and (3) the Total Leverage Ratio does not exceed 4.25:1.00, (ii) any such Indebtedness that is subordinated to the Obligations in right of payment or collateral shall be subject to an Acceptable Intercreditor Agreement, and (iii) any such Indebtedness that is secured by any ABL Priority Collateral shall be junior in right of security with respect to the ABL Priority Collateral and shall be subject to an Acceptable Intercreditor Agreement; provided, however, that the aggregate principal amount of Non-Loan Party Indebtedness at the time incurred, together with all other outstanding Non-Loan Party Indebtedness, shall not exceed the Non-Loan Party Cap;
(r) Indebtedness of any Loan Party and/or any Restricted Subsidiary thereof incurred in respect of any Term Facility in an aggregate outstanding principal or committed amount that does not exceed the aggregate amount of Term Loans permitted to be incurred under the Term Loan Agreement as in effect on the Fifth Amendment Effective Date (after giving effect to any amendment to the Term Loan Agreement entered into on or around such date);
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Daseke, Inc.)
Indebtedness. No Credit Party shallEach of the Loan Parties shall not, nor and shall it not permit any of its Subsidiaries to, directly or indirectly, at any time create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect suffer to exist any Indebtedness, except:
(ai) Indebtedness under the ObligationsLoan Documents;
(b) Senior Notes in an aggregate principal amount not to exceed $4,350,000,000;
(c) Indebtedness of any Subsidiary of Borrower to Borrower or any other such Subsidiary or of Borrower to any of its Subsidiaries; provided that (i) all such Indebtedness, if owed to a Credit Party, shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral Document, (ii) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of a subordination agreement with respect to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness and [Reserved.]
(iii) in respect of Indebtedness as set forth on Schedule 8.2.1 (including any Indebtedness owing by a Subsidiary that is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(dextensions or renewals thereof);
(div) Indebtedness incurred by Borrower or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) or from guaranties or letters of credit, surety bonds, performance bonds or similar obligations securing the performance of Borrower or any such Subsidiary pursuant with respect to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or any of its SubsidiariesPurchase Money Security Interests and capitalized leases;
(ev) Indebtedness (a) of a Loan Party to another Loan Party, (b) of a Loan Party to any wholly owned Subsidiary of a Loan Party, or (c) of any Foreign Subsidiary to another Foreign Subsidiary, which may be deemed in each case with respect to exist the foregoing clauses (a) and (b) is subordinated pursuant to the Intercompany Subordination Agreement;
(vi) Indebtedness owed to any guarantiesPerson providing workers’ compensation, performancehealth, suretydisability or other employee benefits or property, statutorycasualty or liability insurance, appeal pursuant to reimbursement or similar indemnification obligations to such person, in each case incurred in the ordinary course of business;
(fvii) 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 ordinary course of business;
(viii) Indebtedness incurred in the ordinary course of business for the financing of insurance premiums of insurers providing insurance to a Loan Party or a Subsidiary of a Loan Party of the type required by Section 8.1.3 [Maintenance of Insurance] or any other Loan Document;
(ix) Earn-out payments incurred by the Loan Parties and their Subsidiaries in connection with a Permitted Acquisition;
(x) Indebtedness of the Foreign Subsidiaries (other than Indebtedness to another Foreign Subsidiary which is governed by clause (v) above);
(xi) Indebtedness and other obligations in respect of netting services, overdraft protections and otherwise similar arrangements in each case in connection with cash management agreements and deposit accounts;
(g) guaranties accounts in the ordinary course of business business;
(xii) Indebtedness in respect of bankers’ acceptance, letter of credit, bank guarantees, warehouse receipt or similar facilities entered into in the obligations ordinary course of suppliersbusiness;
(xiii) Guaranties permitted by Section 8.2.3 [Guaranties];
(xiv) Any (i) Lender Provided Swap Agreement, customersor (ii) Indebtedness under any Other Lender Provided Financial Services Product; provided however, franchisees of the Loan Parties and licensees to their Subsidiaries shall enter into a Lender Provided Swap Agreement only for hedging (rather than speculative) purposes;
(xv) Any other Qualified Swap Agreement; and
(xvi) Any unsecured Indebtedness not otherwise permitted in items (i) through (ix) above which does not exceed Sixty Million and of Borrower and its Subsidiaries;00/100 Dollars ($60,000,000.00) in the aggregate at any one time outstanding.
Appears in 1 contract
Indebtedness. No Credit Party shallThe Borrower shall not, nor and shall it not permit any of its Restricted Subsidiaries to, directly Incur or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect suffer to exist any Indebtedness, except:
(a) existing Indebtedness outstanding on the ObligationsClosing Date and described on Schedule 7.3;
(a) Indebtedness under the Credit Documents;
(b) Senior Notes intercompany loans and advances made by (i) the beneficial owners of the Borrower to the Borrower in an aggregate principal relation to unfunded capital calls as provided in the organizational documents of the Borrower, so long as such indebtedness is subject to a customary subordination agreement with respect to the liens of the Lenders, pays only dividends in kind and the amount not of such dividend is capitalized and (ii) the Borrower to exceed $4,350,000,000any Restricted Subsidiary or made by any Restricted Subsidiary to the Borrower or its Restricted Subsidiaries; provided that any such Indebtedness owed by any Credit Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent pursuant to a customary subordination agreement;
(c) Indebtedness at any time after the MarAd Lien Release Date under any Rate Management and Currency Protection Transactions entered into in the ordinary course of any Subsidiary business and not for speculative purposes, and Indebtedness in respect of Borrower to Borrower or any other such Subsidiary or of Borrower to any of its SubsidiariesSpecified Cash Management Obligations; provided that (i) all that, in each case, the incurrence of such Indebtedness, if owed to a Credit Party, Indebtedness shall be evidenced conditioned upon receipt by the Intercompany Note or another promissory note Administrative Agent and shall be subject to a First Priority Lien pursuant to the applicable Collateral Document, (ii) all such Indebtedness owing by Lender or Affiliate of a Credit Party to a Subsidiary Lender that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of a subordination agreement with respect to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness transaction of copies of resolutions of the Board of Directors or other appropriate governing body of the Borrower authorizing the execution and (iii) in respect delivery of any Indebtedness owing by a Subsidiary that is not a Credit Party to a Credit Party, the documents evidencing such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d)Indebtedness;
(d) Indebtedness incurred by of a Person existing at the time such Person becomes a Restricted Subsidiary of the Borrower or is merged with or into the Borrower or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting Restricted Subsidiary of the deferred purchase price Borrower and not Incurred in contemplation of property acquired in a Permitted Acquisition) or from guaranties or letters of credit, surety bonds, performance bonds or similar obligations securing the performance of Borrower or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or any of its Subsidiariestransaction;
(e) Capitalized Lease Obligations and Indebtedness which may be deemed to exist pursuant to secured by Liens permitted under Section 7.2(g); provided that the aggregate principal amount of all Capitalized Lease Obligations and Indebtedness under this Section 7.3(f) shall not exceed at any guaranties, performance, surety, statutory, appeal or similar obligations incurred in the ordinary course of businessone time outstanding $10,000,000;
(f) Guaranties with respect to Indebtedness in respect of netting services, overdraft protections and pursuant to this Section 7.3 (other than clause (c) unless otherwise in connection with deposit accountspermitted pursuant to such clause);
(g) guaranties Indebtedness owing to any insurance company in connection with the ordinary course financing of business any insurance premiums permitted by such insurance company;
(h) Indebtedness in respect of bid, performance or surety bonds, workers’ compensation claims, self-insurance obligations and bankers acceptances issued not to exceed $5,000,000 million;
(i) any other unsecured Indebtedness Incurred by any Credit Party, provided that the obligations Borrower is in compliance on a Pro Forma Basis with the covenants set forth in Section 7.7; provided that after giving pro forma effect to the Incurrence of supplierssuch Indebtedness and any concurrent repayment of other Indebtedness, customersLeverage Ratio is less than the then applicable maximum Leverage Ratio under Section 7.7 by at least .50; and
(j) extensions, franchisees modifications, renewals, refinancings or replacements of Indebtedness permitted by this Section 7.3 that do not increase the principal amount of such Indebtedness (other than by amounts equal to unpaid accrued interest and licensees to premium thereon plus other amounts paid, and of Borrower fees and its Subsidiaries;expenses (including any bona fide amendment, waiver or consent fee) reasonably Incurred, in connection such extension, modification, renewal, refinancing or replacement).
Appears in 1 contract
Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except:
(a) the Obligations;
(b) Senior Notes in an aggregate principal amount not to exceed $4,350,000,000;
(c) Indebtedness of any Subsidiary of Borrower Company to Borrower or any other such Subsidiary or of Borrower to any of its SubsidiariesCompany; provided that provided, (i) all such Indebtedness, if owed to a Credit Party, Indebtedness shall be evidenced by the Intercompany Note or another promissory note notes and all such notes shall be subject to a First Priority Lien pursuant to the applicable Collateral DocumentPledge and Security Agreement, (ii) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of a the applicable promissory notes or an intercompany subordination agreement with respect that in any such case, is reasonably satisfactory to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness Administrative Agent, and (iii) any payment by any such Company under any guaranty of the Obligations shall result in respect a pro tanto reduction of the amount of any Indebtedness owing owed by a such Subsidiary that to such Company or to any of its Subsidiaries for whose benefit such payment is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d)made;
(dc) Indebtedness incurred by Borrower any Company or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) indemnification or from guaranties or letters of credit, surety bonds, bonds or performance bonds or similar obligations securing the performance of Borrower any Company or any such Subsidiary pursuant to such agreements, in connection with the Closing Date Acquisitions, Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower Holdings or any of its Subsidiaries;
(ed) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, statutory or appeal bonds or similar obligations incurred in the ordinary course of business;
(fe) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accountsDeposit Accounts;
(gf) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees of and licensees to and of Borrower any Company and its Subsidiaries;
(g) guaranties by any Company of Indebtedness of another Company or guaranties by a Subsidiary of any Company of Indebtedness of such Company with respect, in each case, to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.1; provided, that if the Indebtedness that is being guarantied is unsecured and/or subordinated to the Obligations, the guaranty shall also be unsecured and/or subordinated to the Obligations;
(h) Indebtedness described in Schedule 6.1, but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement, and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(i) Indebtedness in an aggregate amount not to exceed at any time $5,000,000 with respect to (x) Capital Leases and (y) purchase money Indebtedness (including any Indebtedness acquired in connection with a Permitted Acquisition); provided, in the case of clause (x), that any such Indebtedness shall be secured only by the asset subject to such Capital Lease, and, in the case of clause (y), that any such Indebtedness shall (i) be secured only by the asset acquired in connection with the incurrence of such Indebtedness and (ii) constitute not less than 85% of the aggregate consideration paid with respect to such asset;
(j) The Subordinated Debt in an aggregate principal amount not to exceed $2,700,000 at any time outstanding (other than any interest paid in kind in accordance with the subordination terms applicable to such Subordinated Debt); and
(k) other unsecured Indebtedness of the Companies and their Subsidiaries other than the types listed in Section 6.1(a) – (j), which is unsecured and subordinated to the Obligations in a manner satisfactory to Administrative Agent in an aggregate amount not to exceed at any time $250,000. No Credit Party shall, nor shall it permit any of its Subsidiaries to, issue any Capital Stock other than Qualified Capital Stock. To the extent any other Capital Stock of the issuing Credit Party or Subsidiary is pledged to secure the Obligations, such additional Capital Stock shall also be pledged to secure the Obligations pursuant to the Pledge and Security Agreement.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Meridian Waste Solutions, Inc.)
Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except:
(a) the Obligations;
(b) Senior Notes in an Indebtedness of (i) any Guarantor Subsidiary to Company or to any other Guarantor Subsidiary, or of Company to any Guarantor Subsidiary; or (ii) any Foreign Subsidiary (as obligor) to any Credit Party (as maker); provided that the aggregate principal amount not to exceed $4,350,000,000;
(c) of all such Indebtedness of any Subsidiary of Borrower to Borrower or any other such Subsidiary or of Borrower Foreign Subsidiaries to any one or more Credit Parties, together with all other Investments made in accordance with Section 6.7(b)(iv), shall not exceed the amount of its SubsidiariesInvestments that the Credit Parties are permitted to make under Section 6.7(b)(iv); and provided that further, (iA) all such Indebtedness, if owed to a Credit Party, Indebtedness shall be evidenced by the Intercompany Note or another promissory note notes and all such notes shall be subject to a First Priority Lien pursuant to the applicable Collateral DocumentPledge and Security Agreement, (iiB) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of a any applicable promissory notes or an intercompany subordination agreement with respect that in any such case, is reasonably satisfactory to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness Administrative Agent, and (iiiC) any payment by any such Guarantor Subsidiary under any guaranty of the Obligations shall result in respect a pro tanto reduction of the amount of any Indebtedness owing owed by a such Subsidiary to Company or to any of its Subsidiaries for whose benefit such payment is made;
(c) on and before the Closing Date, the Indebtedness outstanding under the Existing X-Rite Revolving Credit Agreement; provided that is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment outstanding under the proviso to Section 6.6(d)Existing X-Rite Revolving Credit Agreement be repaid in cash in full as of the Closing Date;
(d) Indebtedness incurred by Borrower Company or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) obligations, or from guaranties or letters of credit, surety bonds, bonds or performance bonds or similar obligations securing the performance of Borrower Company or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower Company or any of its Subsidiaries;
(e) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal or similar obligations incurred in the ordinary course of business;
(f) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accounts;
(g) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees of and licensees to and of Borrower Company and its Subsidiaries;
(h) guaranties by Company of Indebtedness of a Guarantor Subsidiary or guaranties by a Subsidiary of Company of Indebtedness of Company or a Guarantor Subsidiary with respect, in each case, to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.1;
(i) Indebtedness described in Schedule 6.1, but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(j) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an aggregate amount not to exceed at any time $3,000,000 (including any purchase money Indebtedness acquired in connection with a Permitted Acquisition); provided, any such purchase money Indebtedness (i) shall be secured only to the asset acquired in connection with the incurrence of such Indebtedness, and (ii) shall constitute not less than 85% of the aggregate consideration paid with respect to such asset;
(k) other unsecured Indebtedness of Company and its Subsidiaries, in an aggregate amount not to exceed at any time $2,000,000;
(l) the Second Lien Term Loans owed under the Second Lien Credit Agreement in an aggregate principal amount not to exceed $60,000,000 plus any accrued interest or fees, and, subject to the terms of the Intercreditor Agreement, Indebtedness incurred to refinance, renew or replace such Indebtedness in whole or in part; provided that, (i) the terms and conditions of such Indebtedness, taken as a whole, are no less favorable in any material respect to the obligors thereof or the Lenders than the Second Lien Credit Agreement, (ii) no Subsidiary of Company that is not a Guarantor hereunder shall be a guarantor of such refinancing, renewal or replacement and (iii) the average life to maturity thereof is greater than or equal to that of the Second Lien Term Loans;
(m) Indebtedness in an amount not to exceed $25,000,000 of Company (as obligor) to Amazys (as maker); provided that (i) all such Indebtedness shall be evidenced by promissory notes in form and substance reasonably satisfactory to the Administrative Agent, (ii) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to an intercreditor or subordination agreement, at the option of the Administrative Agent, governed by the law of the jurisdiction of formation of the intercompany creditor, that in any case is reasonably satisfactory to Administrative Agent, (iii) the final maturity of such Indebtedness shall not be or become due earlier than at least six (6) months after the later of the Term Loan Maturity Date or the Revolving Commitment Termination Date, and (iv) such Indebtedness shall require no mandatory payment of principal, interest, fees or other amounts and no payment of such principal, interest fees or other amounts (whether mandatory or voluntary) shall be made (other than in accordance with and subject to the limitations set forth in Section 6.7(b)(iv) as if such payment were an Investment for purposes of Section 6.7), prior to at least six (6) months after the later of the Term Loan Maturity Date and the Revolving Commitment Termination Date; and
(n) from the Effective Date, through and including the date that is the earlier of (i) the date of the Existing Headquarters Asset Sale and (ii) March 31, 2007, the Existing Headquarters Loan and the Existing Headquarters Guaranty; provided that such Existing Headquarters Loan shall be repaid in cash in full on the earlier of (x) the date of the Existing Headquarters Asset Sale and (y) March 31, 2007; provided, further that the Existing Headquarters Guaranty shall be cancelled and released upon the repayment in full of the Existing Headquarters Loan.
Appears in 1 contract
Sources: First Lien Credit and Guaranty Agreement (X Rite Inc)
Indebtedness. No Credit Party shallCompany and each Borrower shall not, nor and shall it not permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to to, any Indebtedness, except:
(ai) Loan Parties may become and remain liable with respect to the ObligationsObligations and may guaranty the Obligations and the Other Lender Guarantied Obligations pursuant to their respective Guaranties; 115
(ii) Company and its Subsidiaries may become and remain liable with respect to Contingent Obligations permitted by subsection 6.4 and, upon any matured obligations actually arising pursuant thereto, the Indebtedness corresponding to the Contingent Obligations so extinguished;
(biii) Senior Notes Company and its Subsidiaries may become and remain liable with respect to Indebtedness in an aggregate principal amount respect of Capital Leases aggregating not to exceed in excess of $4,350,000,000200,000,000 at any one time;
(civ) Company may become and remain liable with respect to Indebtedness of any Subsidiary of Borrower to Borrower or any other such Subsidiary or of Borrower to any of its Subsidiaries, and any Subsidiary of Company may become and remain liable with respect to Indebtedness to Company or any other Subsidiary of Company; provided PROVIDED that (ia) all such Indebtedness, if owed to a Credit Party, intercompany Indebtedness shall be evidenced by promissory notes to the Intercompany Note or another promissory note and shall be subject extent it evidences Indebtedness owed to a First Priority Lien pursuant to the applicable Collateral DocumentLoan Party, (iib) all such intercompany Indebtedness owing owed by a Credit Party Company to a Subsidiary that is not a Credit Party any of its Subsidiaries shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement, and (c) any payment by any Subsidiary of Company under any guaranty of the Obligations shall result in a subordination agreement PRO TANTO reduction of the amount of any intercompany Indebtedness owed by such Subsidiary to any Domestic Borrower or to any of their respective Subsidiaries for whose benefit such payment is made; and Company may become and remain liable with respect to Indebtedness to Holdings; PROVIDED that such Indebtedness substantially in the form shall be evidenced by its existing subordinated intercompany note dated as of Exhibit J-2 among the Credit Parties April 23, 2001 and such Subsidiaries party to such Indebtedness and (iii) in respect subordinated note shall not be amended without the consent of any Indebtedness owing by a Subsidiary that is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d)Agents;
(dv) Indebtedness incurred by Borrower or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) or from guaranties or letters of credit, surety bonds, performance bonds or similar obligations securing the performance of Borrower or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or any of Company and its Subsidiaries, as applicable, may remain liable with respect to Indebtedness described in SCHEDULE 6.1 annexed hereto and any extensions, renewals and refinancings thereof to the extent that such extensions, renewals and refinancings thereof do not result in an increase in the aggregate principal amount or commitment amount of such Indebtedness as described in SCHEDULE 6.1;
(evi) Indebtedness which Company and Packaging may be deemed become and remain liable with respect to exist pursuant to any guaranties, performance, surety, statutory, appeal or similar obligations incurred in the ordinary course of businessExisting Senior Notes on a subordinated basis;
(fvii) Indebtedness in Company and other Loan Parties may become and remain liable with respect of netting services, overdraft protections and otherwise in connection with deposit accountsto the New Senior Debt;
(gviii) guaranties in Company and Packaging may become and remain liable with respect to the ordinary course of business of the obligations of suppliers, customers, franchisees of Refinancing Senior Debt on a subordinated basis;
(ix) Company and licensees other Packaging may become and remain liable with respect to and of Borrower New Junior Debt on a subordinated or unsecured basis or both;
(x) Company and its SubsidiariesSubsidiaries may become and remain liable with respect to Purchase Money Indebtedness in an aggregate principal amount not to exceed $200,000,000 at any time outstanding;
(xi) In addition to Indebtedness permitted by the other clauses of this subsection, Foreign Subsidiaries of Company may become and remain liable with respect to other Indebtedness in an aggregate principal amount not to exceed $200,000,000 at any time outstanding;
(xii) In addition to Indebtedness permitted by the other clauses of this subsection, Company and its Domestic Subsidiaries may become and remain liable with respect to other Indebtedness in an aggregate principal amount not to exceed $200,000,000 at any time outstanding;
(xiii) In addition to Indebtedness permitted by the other clauses of this subsection, Italian Offshore Borrowers and their Subsidiaries may become and remain liable with respect to other Indebtedness in an aggregate principal amount not to exceed $50,000,000 at any time outstanding;
(xiv) Company and its Subsidiaries may become and remain liable with respect to Acquired Indebtedness; and
(xv) Company and its Subsidiaries may become and remain liable with respect to Receivables Sale Indebtedness.
Appears in 1 contract
Indebtedness. No Credit Party shallThe Loan Parties will not, nor shall it and will not permit any of its their respective Subsidiaries to, directly or indirectly, create, incur, assume or guarantyassume, guaranty or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, exceptIndebtedness except for:
(aA) the Loans and the other Obligations;
(bB) Senior Notes in an aggregate principal amount not to exceed $4,350,000,000the Contingent Obligations permitted by Subsection 3.4;
(cC) Indebtedness of incurred in connection with any Subsidiary of Borrower to Borrower or any other such Subsidiary or of Borrower to any of its Subsidiaries; provided that (i) all such Indebtedness, if owed to a Credit Party, shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien Hedge Agreement permitted pursuant to the applicable Collateral Document, Subsection 3.14;
(iiD) all such Indebtedness owing in respect of Investments permitted by a Credit Party Subsection 3.3;
(E) Indebtedness to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of a subordination agreement depository institutions with respect to such Indebtedness substantially cash management and similar arrangements in the form ordinary course of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness and (iii) in respect of any Indebtedness owing by a Subsidiary that is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d)business;
(dF) Indebtedness incurred by Borrower or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting representing deferred compensation to employees of the deferred purchase price of property acquired in a Permitted Acquisition) or from guaranties or letters of credit, surety bonds, performance bonds or similar obligations securing the performance of Borrower or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or any of its Subsidiaries;
(e) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal or similar obligations Loan Parties and their Subsidiaries incurred in the ordinary course of business;
(fG) Indebtedness in respect under purchase money security agreements, Capital Leases, and other Indebtedness, the aggregate principal amount of netting services, overdraft protections which shall not exceed $10,000,000 for all of the Loan Parties and otherwise in connection with deposit accountstheir Subsidiaries at any time;
(gH) guaranties Indebtedness of Shenandoah Telephone Company to RUS in an aggregate outstanding amount not to exceed $200,000 at any one time;
(I) Indebtedness among the Loan Parties; provided that, any such intercompany Indebtedness owed by Borrower to another Loan Party which is a wholly-owned, direct Subsidiary of Borrower shall be paid down in full at least once per fiscal quarter by means of a dividend to Borrower in the ordinary course amount of business such outstanding Indebtedness to the extent such dividend is permitted by Applicable Law; Credit Agreement/Shenandoah Telecommunications Company
(J) Indebtedness of Borrower to Shenandoah Telephone Company pursuant to intercompany loans with respect to the obligations of suppliers, customers, franchisees of and licensees to and cash management system of Borrower and its Subsidiaries; provided that, such Indebtedness (i) shall be paid down in full at least once per fiscal quarter by means of a dividend in the amount of the outstanding Indebtedness from Shenandoah Telephone Company to Borrower, to the extent such dividend is permitted by Applicable Law, and (ii) shall not exceed $2,500,000 at any one time;
(K) In addition to the Indebtedness to Shenandoah Telephone Company permitted pursuant to Subsection 3.1(J), other Indebtedness of the Loan Parties to the Excluded Subsidiaries which shall not exceed $500,000 in the aggregate principal amount outstanding at any time; or
(L) Indebtedness of a Person or Indebtedness attaching to the assets of a Person that, in either case, becomes a Subsidiary of any Loan Party (or is a Subsidiary that survives a merger with such Person) or Indebtedness attaching to assets that are acquired by any Loan Party or any Subsidiary of a Loan Party, in each case, after the Closing Date as the result of a Permitted Investment; provided that
(i) such Indebtedness existed at the time such Person became a Subsidiary of a Loan Party or at the time such assets were acquired and, in each case, was not created in anticipation thereof, and
(ii) such Indebtedness is not guaranteed in any respect by any Loan Party or any Subsidiary of a Loan Party (other than by any such Person that so becomes a Subsidiary or is the survivor of a merger with such Person, or any of its Subsidiaries), and
(iii) (1) the equity interests of such Person are pledged to secure the Secured Obligations to the extent required hereunder and in the other Loan Documents, (2) such Person otherwise complies with Subsection 2.12, and (3) the assets are subject to the Lien of Administrative Agent under the Security Agreements subject only to Permitted Encumbrances, and
(iv) (1) after giving pro forma effect to the incurrence of such Indebtedness and the application of proceeds thereof, Borrower is in compliance with the covenants set forth in Subsections 4.1 through 4.5 for the most recently ended test period and (2) except for Indebtedness consisting of capital lease obligations, purchase money Indebtedness or mortgages or other Liens on specific assets (a) no portion of such Indebtedness matures prior to the latest maturity date of any of the Loans, and (b) no portion of such Indebtedness is issued or guaranteed by a Person that is, or as a result of such acquisition becomes, a Subsidiary that is not a Guarantor, and
(v) The aggregate principal amount of such assumed Indebtedness outstanding at any one time shall not exceed $10,000,000.
Appears in 1 contract
Sources: Credit Agreement (Shenandoah Telecommunications Co/Va/)
Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to, or permit to exist, any Indebtedness, or guarantee, assume, endorse, or otherwise become responsible for directly or indirectly, such Indebtedness of any other Person except:
(a) the Obligations;
(b) Senior Notes in an aggregate principal amount not to exceed $4,350,000,000;
(c) Indebtedness of (x) among the Core Credit Parties, provided that no such Indebtedness may be advanced to Holdings to the extent that the amount of such Indebtedness could not be made as a Restricted Junior Payment permitted by Section 6.5 or (y) any Subsidiary of Borrower Holdings owed to Borrower Holdings or any other such Subsidiary or of Borrower to any of its Subsidiariesother Subsidiaries to the extent permitted as an Investment pursuant to Section 6.7(f); provided that provided, (i) all such Indebtedness, if owed to a Credit Party, shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral Document, (ii) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured and (as applicable) subordinated in right of payment to the payment in full of the Obligations pursuant on terms and conditions satisfactory to Administrative Agent and Syndication Agent, (ii) any payment by any such Core Credit Party which is a Guarantor Subsidiary under any guaranty of the terms Obligations shall result in a pro tanto reduction of a subordination agreement with respect the amount of any Indebtedness owed by such Subsidiary to Borrower or to any of its Subsidiaries for whose benefit such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness and payment is made, (iii) Borrower and any Subsidiary shall not be permitted to make any payments to Holdings in respect of any such Indebtedness owing by a to Holdings (or any Subsidiary that of Holdings which is not a Credit Party Subsidiary of Borrower) unless such payments would be expressly permitted to be made, if made by way of a dividend or other Restricted Junior Payment, pursuant to Section 6.5 and (iv) such Indebtedness, if owed to a Core Credit Party, such Indebtedness is permitted as an Investment under the proviso shall be evidenced by a promissory note in form and substance satisfactory to Section 6.6(d)Administrative Agent and Syndication Agent and which shall have been delivered to, and be subject to a First Priority perfected Lien of, Collateral Agent;
(dc) Indebtedness incurred by Borrower Holdings or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) obligations, or from guaranties or letters of credit, surety bonds, bonds or performance bonds or similar obligations securing the performance of Borrower or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower Holdings or any of its Subsidiaries;
(ed) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal or similar obligations incurred in the ordinary course of business;
(fe) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accounts;
(gf) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees of and licensees to and of Borrower Holdings and its Subsidiaries;
Appears in 1 contract
Sources: Term Loan and Guaranty Agreement (Fedders Corp /De)
Indebtedness. No Credit Note Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except:
(a) the Obligations;
(b) Senior Notes in an aggregate principal amount not to exceed $4,350,000,000;
(c) Indebtedness of any Guarantor Subsidiary of Borrower to Borrower Company or to any other such Subsidiary Guarantor Subsidiary, or of Borrower Company to any of its SubsidiariesGuarantor Subsidiary; provided that provided, (i) all such Indebtedness, if owed to a Credit Party, Indebtedness shall be evidenced by the Intercompany Note or another promissory note and Subordination, and shall be subject to a First Priority Lien pursuant to the applicable Collateral DocumentPledge and Security Agreement, and (ii) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment Payment in full Full of the all Obligations pursuant to the terms of the Intercompany Note and Subordination;
(c) Indebtedness for (i) deferred salaried compensation to a subordination agreement with respect Note Party’s employees, not to such Indebtedness substantially exceed $250,000 in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness aggregate, and (iiiii) liabilities of Note Parties associated with accrued but unused vacation time of employees of the Note Parties incurred in respect the ordinary course of any Indebtedness owing by a Subsidiary that is not a Credit Party business and pursuant to a Credit Party, such Indebtedness is permitted as an Investment under applicable laws governing the proviso to Section 6.6(d)Note Parties’ businesses;
(d) Indebtedness incurred by Borrower Company or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) customary indemnification or from customary guaranties or letters of credit, surety bonds, bonds or performance bonds or similar obligations securing the performance of Borrower Company or any such Subsidiary pursuant to such agreements, agreements in connection with Permitted Acquisitions or Acquisitions, permitted dispositions of any business, assets or Subsidiary of Borrower Company or any of its Subsidiaries, or constituting reimbursement obligations with respect to letters of credit issued in the ordinary course of business 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 such similar reimbursement-type obligations;
(e) Indebtedness which that may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal or similar bonds or statutory obligations incurred in the ordinary course of business, and guarantee obligations in respect of any such Indebtedness;
(f) Indebtedness in respect of netting services, overdraft protections and otherwise other services provided in connection with deposit accountsaccounts in the ordinary course of business;
(g) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees of and licensees to and of Borrower Company and its Subsidiaries;
(h) guaranties by Company of Indebtedness of a Guarantor Subsidiary or guaranties by a Subsidiary of Company of Indebtedness of Company or a Guarantor Subsidiary with respect, in each case, to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.1; provided, that if the Indebtedness that is being guaranteed is unsecured and/or subordinate to the Obligations (in payment or Lien priority), then such guaranties shall also be unsecured and/or subordinated to the Obligations to the same extent as such guaranteed Indebtedness;
(i) Indebtedness described in Schedule 6.1, but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement, and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Purchasers than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(j) Indebtedness in an aggregate amount not to exceed at any time $1,000,000 consisting of (x) Capital Lease Obligations and (y) other purchase money Indebtedness; provided, in the case of clause (x), that any such Indebtedness shall be secured only by the asset subject to such Capital Lease, and, in the case of clause (y), that any such Indebtedness shall (i) be secured only by the asset acquired in connection with the incurrence of such Indebtedness and (ii) constitute 100% of the aggregate consideration paid with respect to such asset;
(k) Indebtedness owed to any entity financing insurance premiums or providing property, casualty or liability insurance to Company or any Subsidiary, so long as such indebtedness shall not be in excess of the amount of the unpaid cost of, and shall be incurred only to defer the cost of, such insurance for the year in which such indebtedness is incurred and such indebtedness shall be outstanding only during such year;
(l) Indebtedness owed by a Managed Company to a Note Party incurred after the Closing Date in an amount not to exceed $1,000,000;
(m) obligations under Hedge Agreements which are not for speculative purposes; and
(n) other Indebtedness (other than Indebtedness of the types listed in Section 6.1(a) – (m)) in an aggregate principal amount not to exceed $500,000 at any time outstanding.
Appears in 1 contract
Indebtedness. No Credit Party shallwill, nor shall will it permit any of its Subsidiaries Subsidiary to, directly or indirectly, create, incur, assume or guarantyguarantee, or otherwise become or remain directly or indirectly be liable with in respect to of any Indebtedness, except:, in each case permitted under the Approved Budget (subject to Permitted Variances):
(a) the Obligations;
(b) Senior Notes in an aggregate principal amount not to exceed $4,350,000,000the Carve Out;
(c) Prepetition Indebtedness;
(d) Indebtedness of Holdings or Borrower to any Subsidiary and of any Subsidiary of Borrower to Holdings, Borrower or any other Subsidiary, in each case existing and as in effect on and as of the Petition Date; provided that any such Indebtedness owing by any Subsidiary or of Borrower that is not a Credit Party to any of its SubsidiariesCredit Party shall be incurred in compliance with Section 6.6; provided provided, further, that (i) all such Indebtedness, if owed Indebtedness (other than non-funded intercompany Indebtedness evidencing intercompany balances among the Credit Parties) owing by a non-Credit Party to a Credit Party, Party shall be evidenced by the Intercompany Note or another promissory an intercompany note that is in form and substance reasonably acceptable to Administrative Agent and shall be subject to a First Priority Lien Superpriority Liens in accordance with, and pursuant to to, the applicable Collateral DocumentDocuments, (ii) all such Indebtedness owing owed by a Credit Party to a Subsidiary that is not a non-Credit Party shall be unsecured and subordinated in right of payment to the payment in full in cash of the Obligations pursuant in a manner satisfactory to the terms of a subordination agreement with respect to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness and Administrative Agent, (iii) any payment by any such Subsidiary that is a Guarantor Subsidiary under any guaranty of the Obligations shall result in respect a pro tanto reduction of the amount of any Indebtedness owing owed by a such Subsidiary that to Borrower or to any of the other Subsidiaries for whose benefit such payment is not made and (iv) in the case of any such Indebtedness owed by a Credit Party to a Credit Partyan Excluded Subsidiary, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d)shall be unsecured, non-cash pay, non-amortizing, and without covenants or defaults other than nonpayment at maturity;
(de) Indebtedness incurred guarantees by Borrower Holdings or any of its Subsidiaries arising from agreements providing of Indebtedness of (i) so long as such Subsidiary also guarantees the Obligations on a pari passu basis, any Credit Party or (ii) any other Subsidiary, in each case existing and as in effect on and as of the Petition Date; provided that such guarantees of Indebtedness of Subsidiaries that are not Credit Parties are incurred in compliance with Section 6.6; provided, further, that no Subsidiary (other than Borrower) may guarantee any Indebtedness except to the extent such guarantee was existing on and as in effect on and as of the Petition Date and permitted to be guaranteed under the Prepetition Term Loan Credit Agreement;
(f) Permitted Indebtedness;
(g) Indebtedness of Holdings or any of its Subsidiaries supported by (i) a letter of credit issued pursuant to the Prepetition ABL Credit Agreement or (ii) an Expiring Letter of Credit or, to the extent such Expiring Letter of Credit is cancelled, expired, terminated or otherwise not outstanding, a letter of credit issued in replacement of such Expiring Letter of Credit (or such replacement letter of credit), in each case in a principal amount not in excess of the stated amount of such letter of credit or Expiring Letter of Credit or replacement letter of credit;
(h) Indebtedness pursuant to Sale/Leaseback Transactions consummated pursuant to Section 6.10;
(i) unsecured reimbursement obligations in respect of standby letters of credit issued in the ordinary course of business for indemnificationthe account of Holdings, adjustment Borrower, or any other direct or indirect Subsidiary of purchase price or similar obligations Holdings so long as only Borrower and Holdings are obligated to reimburse the issuer thereof in the case of any drawing;
(including j) Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) or from guaranties or letters of credit, surety bonds, performance bonds guarantees or similar obligations securing the performance other credit support provided in respect of trade payables of Borrower or any Subsidiary, in each case issued for the benefit of any bank, financial institution or other Person that has acquired such Subsidiary trade payables pursuant to such agreements, in connection with Permitted Acquisitions “supply chain” or permitted dispositions of any business, assets or Subsidiary other similar financing for vendors and suppliers of Borrower or any of its Subsidiaries;
, so long as (ei) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal or similar obligations incurred other than in the ordinary course case of business;
Secured Supply Chain Obligations, such Indebtedness is unsecured, (fii) the terms of such trade payables shall not have been extended in connection with the Permitted Supply Chain Financing and (iii) such Indebtedness represents amounts not in excess of those which Borrower or any of its Subsidiaries would otherwise have been obligated to pay to its vendor or supplier in respect of netting servicesthe applicable trade payables (“Permitted Supply Chain Financing”), overdraft protections and otherwise in connection with deposit accounts;
(g) guaranties each case, in the ordinary course of business and not materially interfering with the conduct of the obligations business of suppliers, customers, franchisees of and licensees to and of Borrower Holdings and its Subsidiaries;, taken as a whole; and
(k) other Indebtedness in an aggregate principal amount not to exceed $5,000,000 at any time outstanding (other than in respect of any intercompany Indebtedness incurred among Credit Parties permitted by this Agreement, but including intercompany Indebtedness among Credit Parties and their Subsidiaries that are not Credit Parties); provided that any funded Indebtedness shall be subordinated to the Obligations in a manner reasonably satisfactory to Administrative Agent; provided, further, that the aggregate amount of any Indebtedness permitted to be made pursuant to this clause (k) shall be reduced by, without duplication, the aggregate amount of any investment made pursuant to Section 6.6(l)(ii) (other than in respect of any intercompany investments made among Credit Parties or their Subsidiaries in reliance on Section 6.6(l)(ii) in the form of Indebtedness incurred in reliance on this Section 6.1(k) (and which Indebtedness reduced capacity hereunder)) and the aggregate amount of any Liens incurred pursuant to Section 6.2(o) (other than in respect of any intercompany Liens incurred among Credit Parties or their Subsidiaries in reliance on Section 6.2(o) securing Indebtedness incurred in reliance on this Section 6.1(k) (and which Indebtedness reduced capacity hereunder)). Notwithstanding the foregoing, no Subsidiary (other than Borrower) may guarantee, or otherwise become liable (whether direct or indirect) with respect to, any Indebtedness of any other Credit Party or Subsidiary except to the extent such guarantee was existing on and as in effect on and as of the Petition Date and permitted to be guaranteed under the Prepetition Term Loan Credit Agreement.
Appears in 1 contract
Sources: Superpriority Senior Secured Debtor in Possession Credit and Guaranty Agreement (J C Penney Co Inc)
Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, exceptother than:
(a) the Obligations;
(b) Senior Notes Indebtedness of any Credit Party (other than Parent) to any other Credit Party;
(c) Indebtedness existing on the Tenth Amendment Effective Date and described in Schedule 8.1;
(d) Indebtedness with respect to (x) Capital Leases and (y) purchase money Indebtedness; provided, in the case of clause (x), that any such Indebtedness shall be secured only by the asset subject to such Capital Lease, and, in the case of clause (y), that any such Indebtedness shall be secured only by the asset acquired in connection with the incurrence of such Indebtedness; provided further that the sum of the aggregate principal amount of any Indebtedness under this clause (e) shall not exceed $1,500,000 at any time;
(e) Indebtedness in respect of any Swap Agreement that is entered into in the ordinary course of business to hedge or mitigate risks to which any Credit Party or any of its Subsidiaries is exposed in the conduct of its business or the management of its liabilities (it being acknowledged by the Borrowers that a Swap Agreement entered into for speculative purposes or of a speculative nature is not a Swap Agreement entered into in the ordinary course of business to hedge or mitigate risks);
(i) any guaranty of a Credit Party with respect to a lease held by any other Credit Party and (ii) any guarantee by any Credit Party of Indebtedness or other obligations of any other Credit Party so long as such Indebtedness or obligation could have been incurred directly by the Credit Party providing such guarantee in accordance with the terms hereof;
(g) Indebtedness incurred by any Credit Party constituting reimbursement obligations with respect to letters of credit and bank guarantees issued in the ordinary course of business, including letters of credit in respect of workers’ compensation claims, performance or surety bonds, health disability or other employee benefits (whether current or former) or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, performance or surety bonds, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance;
(h) Indebtedness arising from agreements of any Credit Party providing for indemnification, adjustment of purchase price, unsecured Earn Out Obligations or similar obligations, in each case, incurred or assumed in connection with any Permitted Acquisition or disposition of any business or assets of such Credit Party permitted hereunder, other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business or assets of a Credit Party for the purpose of financing such acquisition;
(i) obligations in respect of self-insurance, performance, bid, appeal and surety bonds and completion guarantees and similar obligations provided by any Credit Party or obligations in respect of letters of credit, bank guarantee or similar instruments related thereto, in each case, in the ordinary course of business;
(i) Indebtedness occurred in ordinary course of business of the Credit Parties with banks or financial institutions that arises in connection with ordinary banking arrangements to manage cash balances and other cash management services and (ii) Indebtedness in respect of netting services, overdraft protection, credit card programs (to the extent such obligations are not due and owing past the due date specified in any statements with respect thereto), automatic clearinghouse arrangements and similar arrangements in each case in connection with deposit accounts in the ordinary course of business;
(k) [reserved];
(l) Indebtedness incurred by any Credit Party owing to any landlord of any restaurant owned or operated by such Credit Party in an aggregate principal amount not to exceed $4,350,000,0001,000,000 at any time in connection with any liquor license held by such landlord;
(cm) Indebtedness of any Subsidiary of Borrower to Borrower Credit Party or any other such Subsidiary or of Borrower to any of its Subsidiaries; provided that (i) all such Indebtedness, if owed to a Credit Party, shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien thereof not otherwise permitted pursuant to the applicable Collateral Document, (ii) all such Indebtedness owing by a Credit Party this Section 8.1 in an aggregate principal amount not to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of a subordination agreement with respect to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness and (iii) in respect of exceed $5,000,000 at any Indebtedness owing by a Subsidiary that is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d);
(d) Indebtedness incurred by Borrower or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) or from guaranties or letters of credit, surety bonds, performance bonds or similar obligations securing the performance of Borrower or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or any of its Subsidiaries;
(e) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal or similar obligations incurred in the ordinary course of business;
(f) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accounts;
(g) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees of and licensees to and of Borrower and its Subsidiaries;time outstanding; and
Appears in 1 contract
Indebtedness. No Credit Party shallWith respect to any Person means: (a) all indebtedness for money borrowed and any obligations evidenced by bonds, nor debentures, notes or similar debt instruments; (b) all liabilities secured by any mortgage, deed of trust, deed to secure debt, pledge, security interest, lien, charge or other encumbrance existing on property owned or acquired subject thereto, whether or not the liability secured thereby shall it permit have been assumed; (c) all guarantees, endorsements and other contingent obligations whether direct or indirect in respect of indebtedness of others, including any of its Subsidiaries to, directly obligation to supply funds to or indirectly, create, incur, assume or guaranty, or otherwise become or remain in any manner to invest directly or indirectly liable in a Person, to purchase indebtedness, or to assure the owner of indebtedness against loss through an agreement to purchase goods, supplies or services for the purpose of enabling the debtor to make payment of the indebtedness held by such owner, through indemnity or otherwise, and the obligation to reimburse the issuer in respect of any letter of credit; (d) any obligation as a lessee or obligor under a Capitalized Lease; (e) all reimbursement obligations with respect to any Indebtednessletters of credit or similar instruments issued by a Person; and (f) all indebtedness, except:
(a) the Obligations;
(b) Senior Notes in an aggregate principal amount not obligations or other liabilities under or with respect to exceed $4,350,000,000;
(c) Indebtedness of any Subsidiary of Borrower to Borrower or any other such Subsidiary or of Borrower to any of its Subsidiaries; provided that (i) all such Indebtednessinterest rate swap, if owed to a Credit Partycollar, shall be evidenced by the Intercompany Note cap or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral Documentsimilar agreements providing interest rate protection, including, without limitation, any Hedge Agreement, (ii) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of a subordination agreement with respect to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness any Commodity Hedge Agreement, and (iii) foreign currency exchange agreements. For avoidance of doubt, Forestar Group’s obligations under the Warrant Transactions shall not constitute Indebtedness. Indemnified Taxes. Taxes other than Excluded Taxes. Indemnity Agreement. The Third Amended, Restated and Consolidated Indemnity Agreement Regarding Hazardous Materials, made by Forestar Group, Borrower and certain of the Credo Entities in favor of Agent and Lenders, dated as of the Effective Date, pursuant to which such Loan Parties agree to indemnify Agent and Lenders with respect of any Indebtedness owing by a Subsidiary that is not a Credit Party to a Credit PartyHazardous Substances and Environmental Laws, such Indebtedness is permitted Indemnity Agreement to be in form and substance satisfactory to Agent, as an Investment under the proviso to Section 6.6(d);
(d) Indebtedness incurred by Borrower or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) or from guaranties or letters of credit, surety bonds, performance bonds or similar obligations securing the performance of Borrower or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or any of its Subsidiaries;
(e) Indebtedness which same may be deemed further amended, restated, consolidated, supplemented or otherwise modified from time to exist pursuant to any guaranties, performance, surety, statutory, appeal or similar obligations incurred in the ordinary course of business;
(f) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accounts;
(g) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees of and licensees to and of Borrower and its Subsidiaries;time.
Appears in 1 contract
Indebtedness. No Credit Party shallThe Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except:
(a) the ObligationsSecured Obligations (including any Additional Term Loans and any Additional Revolving Loans);
(b) Senior Notes Indebtedness of the Borrower to any Restricted Subsidiary and/or of any Restricted Subsidiary to the Borrower and/or any other Restricted Subsidiary; provided that in the case of any Indebtedness of any Restricted Subsidiary that is not a Loan Party owing to any Restricted Subsidiary that is a Loan Party, such Indebtedness shall be permitted as an aggregate principal amount Investment under Section 6.06; provided, further, that any Indebtedness of any Loan Party to any Restricted Subsidiary that is not a Loan Party must be unsecured and expressly subordinated to exceed $4,350,000,000the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent;
(c) Indebtedness of any Subsidiary of Borrower to Borrower or any other such Subsidiary or of Borrower to any of its Subsidiaries; provided that (i) all such Indebtedness, if owed to a Credit Party, shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral Document, (ii) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of a subordination agreement with respect to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness and (iii) in respect of any Indebtedness owing by a Subsidiary that is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d)[reserved];
(d) Indebtedness incurred by Borrower or any of its Subsidiaries arising from agreements any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date or any other purchase of assets or Capital Stock, and Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) or arising from guaranties or guaranties, letters of credit, bank guaranties, surety bonds, performance bonds or similar obligations instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or any of its Subsidiariesagreement;
(e) Indebtedness which may be deemed to exist of the Borrower and/or any Restricted Subsidiary (i) pursuant to any guarantiestenders, performancestatutory obligations, bids, leases, governmental contracts, trade contracts, surety, statutorystay, appeal customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
(f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of Banking Services 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, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods 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;
(fh) 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 respect the case of netting servicesany Guarantee by any Loan Party of the obligations of any non-Loan Party, overdraft protections and otherwise in connection with deposit accountsthe related Investment is permitted under Section 6.06;
(gi) guaranties Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent the outstanding principal amount thereof exceeds $1,000,000 on the Closing Date, described on Schedule 6.01;
(j) Indebtedness of Restricted Subsidiaries that are not Loan Parties; provided that the aggregate outstanding principal amount of such Indebtedness shall not exceed the greater of $30,000,000 and 30% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the obligations 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 suppliers$25,000,000 and 25% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with any acquisition or similar Investment permitted hereunder after the Closing Date; provided that
(i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation thereof and
(ii) such Indebtedness is in an aggregate principal amount outstanding not to exceed the greater of:
(A) if no Event of Default under Section 7.01(a), customers(f) or (g) exists immediately before or after giving effect thereto, franchisees an amount that may be incurred after giving Pro forma effect to which either:
(1) the Total Leverage Ratio does not exceed 5.90:1.00; or
(2) (x) if such Indebtedness is secured by a Lien on the Collateral that is pari passu with the Lien on the Collateral securing the Secured Obligations that are secured on a first lien basis, the First Lien Leverage Ratio does not exceed the First Lien Leverage Ratio as of the last day of the most recently ended Test Period, (y) if such Indebtedness is secured by a Lien on the Collateral that is junior to the Lien on the Collateral securing the Secured Obligations that are secured on a first lien basis, the Secured Leverage Ratio does not exceed the Secured Leverage Ratio as of the last day of the most recently ended Test Period or (z) if such Indebtedness is unsecured or is secured by assets that do not constitute Collateral, the Total Leverage Ratio does not exceed the Total Leverage Ratio as of the last day of the most recently ended Test Period; and
(B) the greater of $15,000,000 and licensees 15% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of any Parent Company or any current or former director, officer, employee, member of management, manager or consultant of any Parent Company, the Borrower or any subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of any Parent Company permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (j), (m), (n), (q), (r), (u), (w), (y), and (z) of Borrower this Section 6.01 (in any case, including any refinancing Indebtedness incurred in respect thereof, “Refinancing Indebtedness”) and its Subsidiariesany subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (1) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (2) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (j), (m), (n), (u) and/or (y) (other than Customary Bridge Loans), such Indebtedness has (A) a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Latest Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) other than with respect to revolving Indebtedness, such Refinancing Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of the outstanding Term Loans at such time,
(iii) the terms of any Refinancing Indebtedness with an original principal amount in excess of the Threshold Amount (other than any Indebtedness of the type described in Section 6.01(m)) (excluding, to the extent applicable, pricing, fees, premiums, rate floors, optional prepayment, redemption terms or subordination terms and, with respect to Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) above, security), are not, taken as a whole (as reasonably determined by the Borrower), more favorable to the lenders providing such Indebtedness than those applicable to the Indebtedness being refinanced, refunded or replaced (other than (A) any covenant or other provisions applicable only to any period after the applicable maturity date of the debt then-being refinanced as of such date, (B) any covenant or provision which are then-current market terms for the applicable type of Indebtedness or (C) solely in the case, of Refinancing Indebtedness in respect of Indebtedness incurred in reliance on clauses (a) and/or (z), any covenant or other provision which is conformed (or added) to the Loan Documents for the benefit of the Lenders or, as applicable, the Administrative Agent pursuant to an amendment to this Agreement effectuated in reliance on Section 9.02(d)(ii)),
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (j), (m), (n), (q) (solely as it relates to the amount of such Indebtedness that may be incurred by Restricted Subsidiaries that are not Loan Parties), (r), (u), (w) (solely as it relates to the amount of such Indebtedness that may be incurred by Restricted Subsidiaries that are not Loan Parties), (y) and (z) (solely as it relates to the Shared Incremental Amount) of this Section 6.01, the incurrence thereof shall be without duplication of any amount outstanding in reliance on the relevant clause such that the amount available under the relevant clause shall be reduced by the amount of the applicable Refinancing Indebtedness,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and if the Liens securing such Indebtedness were originally contractually subordinated to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those (x) applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or (y) set forth in any relevant Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01 (it being understood that any entity that was a guarantor in respect of the relevant refinanced Indebtedness may be the primary obligor in respect of the refinancing Indebtedness, and any entity that was the primary obligor in respect of the relevant refinanced Indebtedness may be a guarantor in respect of the refinancing Indebtedness), (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i)), and (D) as of the date of the incurrence of such Indebtedness and after giving effect thereto, no Event of Default exists, and
(vi) in the case of Replacement Debt, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder (it being understood that any such Refinancing Indebtedness that is junior with respect to security shall be pari passu with, or junior to, the Second Lien Facility with respect to security), or is unsecured; provided that any such Indebtedness that is pari passu and/or junior with respect to the Collateral shall be subject to an Acceptable Intercreditor Agreement, (B) if the Indebtedness being refinanced, refunded or replaced is secured, it is not secured by any assets other than the Collateral, (C) if the Indebtedness being refinanced, refunded or replaced is Guaranteed, it shall not be Guaranteed by any Person other than one or more Loan Parties and/or the Lighthouse Common Equity Holders and (D) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement;
(q) so long as no Event of Default under Sections 7.01(a), (f) or (g) then exists or would result therefrom, Indebtedness incurred to finance any acquisition permitted hereunder after the Closing Date; provided that
(i) after giving effect thereto, including the application of the proceeds thereof (in each case, without “netting” the cash proceeds of the applicable Indebtedness being incurred):
(A) if such Indebtedness is secured by a Lien on the Collateral that is pari passu with the Lien on the Collateral securing the Secured Obligations that are secured on a first lien basis, the First Lien Leverage Ratio does not exceed the greater of (1) 4.50:1.00 and (2) the First Lien Leverage Ratio as of the last day of the most recently ended Test Period,
(B) if such Indebtedness is secured by a Lien on the Collateral that is junior to the Lien on the Collateral securing the Secured Obligations that are secured on a first lien basis, the Secured Leverage Ratio does not exceed the greater of (1) 5.90:1.00 and (2) the Secured Leverage Ratio as of the last day of the most recently ended Test Period or
(C) if such Indebtedness is unsecured or is secured by assets that do not constitute Collateral, either (1) the Total Leverage Ratio does not exceed the greater of (x) 5.90:1.00 and (y) the Total Leverage Ratio as of the last day of the most recently ended Test Period or (2) the Interest Coverage Ratio is not less than the lesser of (x) 2.00:1.00 and (y) the Interest Coverage Ratio as of the last day of the most recently ended Test Period,
(ii) any such Indebtedness that is subordinated to the Obligations in right of payment shall be subject to an Acceptable Intercreditor Agreement,
(iii) the aggregate outstanding principal amount of any such Indebtedness incu
Appears in 1 contract
Sources: First Lien Credit Agreement (Shift4 Payments, Inc.)
Indebtedness. No Credit Party shallHoldings and the Borrowers shall not, nor and shall it not permit any of its their respective Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to, any Indebtedness or preferred stock, except that each of Holdings and the Borrower Entities may create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any IndebtednessIndebtedness or preferred stock, exceptas follows:
(ai) Each of the ObligationsLoan Parties may become and remain liable with respect to its respective Obligations pursuant to the terms of this Agreement and the other Loan Documents;
(ii) The Borrowers may become and remain liable with respect to Indebtedness to any of the Subsidiary Guarantors and each of the Subsidiary Guarantors may become and remain liable with respect to Indebtedness owed to any other Subsidiary Guarantor; provided that, in each case, (a) no Default or Event of Default has occurred and is continuing at the time of the incurrence thereof or would result therefrom, (b) Senior Notes in an aggregate principal amount not all such intercompany Indebtedness shall be evidenced by promissory notes which shall have been pledged to exceed $4,350,000,000;
the Collateral Agent pursuant to the Collateral Documents, (c) all such intercompany Indebtedness of owed by any Subsidiary of Borrower to Borrower or any other such Subsidiary or of Borrower to any of its Subsidiaries; provided that (i) all such Indebtedness, if owed to a Credit Party, shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral Document, (ii) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Party respective Subsidiaries shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of a the applicable promissory notes or an intercompany subordination agreement that in any such case, are reasonably satisfactory to the Administrative Agent and (d) any payment by any Subsidiary under any Guaranty shall result in a pro tanto reduction of the amount of any intercompany Indebtedness owed by such Subsidiary to any such Borrower or to any of its Subsidiaries for whose benefit such payment is made;
(iii) The Borrower Entities may become and remain liable with respect to such Indebtedness substantially under performance, surety, appeal or indemnity bonds required by Governmental Authorities in connections with the form development (if any) of Exhibit J-2 among the Real Property Collateral;
(iv) Subject to the terms of the Intercreditor Agreement, Holdings, the Borrowers and the Subsidiary Guarantors may become and remain liable with respect to Indebtedness under the First Lien Credit Parties and such Subsidiaries party Agreement in an aggregate principal amount not to such Indebtedness and (iii) in respect exceed $280,000,000 less the amount of any Indebtedness owing by permanent repayments or prepayments thereof (other than to the extent constituting a Subsidiary that is not Refinancing with a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under replacement first lien credit facility in accordance with the proviso to Section 6.6(dterms of the Intercreditor Agreement);
(dv) Indebtedness incurred by Borrower or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted AcquisitionLoan Parties (excluding Shareholder Loans) or from guaranties or letters of creditprovided that the aggregate principal amount for all such Indebtedness at any one time outstanding shall not exceed, surety bondson an aggregate basis among Loan Parties, performance bonds or similar obligations securing the performance of Borrower or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or any of its Subsidiaries$500,000;
(evi) Indebtedness which may be deemed (including, without limitation, Capital Leases) secured by Liens permitted by Section 6.2.A(iv) in an aggregate principal amount not to exist pursuant to exceed, on an aggregate basis among Loan Parties, $1,000,000 at any guaranties, performance, surety, statutory, appeal or similar obligations incurred in the ordinary course of businesstime outstanding;
(fvii) Holdings may remain liable with respect to the existing Shareholder Loans described on Schedule 6.1(vii); and
(viii) Indebtedness of Holdings with respect to Shareholder Loans made after the Effective Date in respect of netting services, overdraft protections and otherwise in connection with deposit accounts;
(g) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees of and licensees aggregate principal amount not to and of Borrower and its Subsidiaries;exceed $5,000,000.
Appears in 1 contract
Sources: Credit Agreement (FX Real Estate & Entertainment Inc.)
Indebtedness. No Credit Party shallThe Borrower Representative shall not, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except:
(a) the ObligationsSecured Obligations (including any Additional Revolving Loans);
(b) Senior Notes Indebtedness of the Borrowers to Holdings and/or any Restricted Subsidiary and/or of any Restricted Subsidiary to Holdings, the Borrowers and/or any other Restricted Subsidiary; provided, that in the case of any Indebtedness of any Restricted Subsidiary that is not a Loan Party owing to any Restricted Subsidiary that is a Loan Party resulting from an aggregate principal amount Investment, such Indebtedness shall be permitted as an Investment under Section 6.06; provided, further, that any Indebtedness of any Loan Party to any Restricted Subsidiary that is not a Loan Party must be unsecured and expressly subordinated to exceed $4,350,000,000the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note);
(c) Indebtedness of any Subsidiary of Borrower to Borrower or any other such Subsidiary or of Borrower to any of its Subsidiaries; provided that (i) all such Indebtedness, if owed to a Credit Party, shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral Document, (ii) all such Indebtedness owing by a Credit Party to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of a subordination agreement with respect to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness and (iii) in respect of any Indebtedness owing by a Subsidiary that is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d)[reserved];
(d) Indebtedness incurred by Borrower or any of its Subsidiaries arising from agreements any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date or any other purchase of assets or Capital Stock, and Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) or arising from guaranties or guaranties, letters of credit, bank guaranties, surety bonds, performance bonds or similar obligations instruments securing the performance of Borrower the Borrowers or any such Restricted Subsidiary pursuant to any such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or any of its Subsidiariesagreement;
(e) Indebtedness which may be deemed to exist of the Borrowers and/or any Restricted Subsidiary (i) pursuant to any guarantiestenders, performancestatutory obligations, bids, leases, governmental contracts, trade contracts, surety, statutorystay, appeal customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
(f) Indebtedness of the Borrowers and/or any Restricted Subsidiary in respect of Banking Services and/or otherwise in connection with Cash management and Deposit Accounts, including Banking Services Obligations and incentive, supplier finance or similar programs;
(g) (i) guaranties by the Borrowers and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrowers 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;
(fh) Guarantees by the Borrowers and/or any Restricted Subsidiary of Indebtedness in or other obligations of the Borrowers, any Restricted Subsidiary and/or any joint venture with respect of netting servicesto Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided, overdraft protections and otherwise in connection with deposit accounts;
(g) guaranties that in the ordinary course case of business any Guarantee by any Loan Party of the obligations of suppliersany non-Loan Party, customersthe related Investment is permitted under Section 6.06;
(i) Indebtedness of the Borrowers and/or any Restricted Subsidiary existing, franchisees or pursuant to commitments existing, on the Closing Date; provided, that any such Indebtedness in excess of and licensees to and of Borrower and its Subsidiaries$5,000,000 shall be described on Schedule 6.01;
Appears in 1 contract
Indebtedness. No Credit Party shallThe Loan Parties will not, nor shall it and will not permit any of its their respective Subsidiaries to, directly or indirectly, create, incur, assume or guarantyassume, guaranty or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, exceptIndebtedness except for:
(aA) the Loans and the other Obligations;
(bB) Senior Notes in an aggregate principal amount not to exceed $4,350,000,000the Contingent Obligations permitted by Subsection 3.4;
(cC) Indebtedness of incurred in connection with any Subsidiary of Borrower to Borrower or any other such Subsidiary or of Borrower to any of its Subsidiaries; provided that (i) all such Indebtedness, if owed to a Credit Party, shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien Hedge Agreement permitted pursuant to the applicable Collateral Document, Subsection 3.14;
(iiD) all such Indebtedness owing in respect of Investments permitted by a Credit Party Subsection 3.3;
(E) Indebtedness to a Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of a subordination agreement depository institutions with respect to such Indebtedness substantially cash management and similar arrangements in the form ordinary course of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness and (iii) in respect of any Indebtedness owing by a Subsidiary that is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d)business;
(dF) Indebtedness incurred by Borrower or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting representing deferred compensation to employees of the deferred purchase price of property acquired in a Permitted Acquisition) or from guaranties or letters of credit, surety bonds, performance bonds or similar obligations securing the performance of Borrower or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or any of its Subsidiaries;
(e) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal or similar obligations Loan Parties and their Subsidiaries incurred in the ordinary course of business;
(fG) Indebtedness in respect under purchase money security agreements, Capital Leases, and other Indebtedness, the aggregate principal amount of netting services, overdraft protections which shall not exceed $20,000,000 for all of the Loan Parties and otherwise in connection with deposit accountstheir Subsidiaries at any time;
(gH) guaranties Indebtedness of Shenandoah Telephone Company to RUS in an aggregate outstanding amount not to exceed $200,000 at any one time;
(I) Indebtedness among the Loan Parties; provided that, any such intercompany Indebtedness owed by Borrower to another Loan Party which is a wholly-owned, direct Subsidiary of Borrower shall be paid down in full at least once per fiscal year by means of a dividend to Borrower in the ordinary course amount of business such outstanding Indebtedness to the extent such dividend is permitted by Applicable Law; Amended and Restated Credit Agreement/Shenandoah Telecommunications Company
(J) Indebtedness of Borrower to Shenandoah Telephone Company pursuant to intercompany loans with respect to the obligations of suppliers, customers, franchisees of and licensees to and cash management system of Borrower and its Subsidiaries; provided that, such Indebtedness (i) shall be paid down in full by means of a dividend in the amount of the outstanding Indebtedness from Shenandoah Telephone Company to Borrower, to the extent such dividend is permitted by Applicable Law, at the earlier of (a) 100 days after the end of each prior fiscal year, and (b) the date that Borrower is or would be required to file Borrower’s annual report with the SEC as part of Borrower’s periodic reporting, and (ii) shall not exceed $10,000,000 at any one time;
(K) In addition to the Indebtedness to Shenandoah Telephone Company permitted pursuant to Subsection 3.1(J), other Indebtedness of the Loan Parties to the Excluded Subsidiaries which shall not exceed $500,000 in the aggregate principal amount outstanding at any time; or
(L) Indebtedness of a Person or Indebtedness attaching to the assets of a Person that, in either case, becomes a Subsidiary of any Loan Party (or is a Subsidiary that survives a merger with such Person) or Indebtedness attaching to assets that are acquired by any Loan Party or any Subsidiary of a Loan Party, in each case, after the Amendment Date as the result of a Permitted Investment; provided that
(i) such Indebtedness existed at the time such Person became a Subsidiary of a Loan Party or at the time such assets were acquired and, in each case, was not created in anticipation thereof, and
(ii) such Indebtedness is not guaranteed in any respect by any Loan Party or any Subsidiary of a Loan Party (other than by any such Person that so becomes a Subsidiary or is the survivor of a merger with such Person, or any of its Subsidiaries), and
(1) the capital stock or other equity interests of such Person are pledged to secure the Secured Obligations to the extent required hereunder and in the other Loan Documents, (2) such Person otherwise complies with Subsection 2.12, and (3) the assets are subject to the Lien of Administrative Agent under the Security Agreements subject only to Permitted Encumbrances, and
(iv) (1) after giving pro forma effect to the incurrence of such Indebtedness and the application of proceeds thereof, Borrower is in compliance with the covenants set forth in Subsections 4.1 through 4.3 for the most recently ended test period and (2) except for Indebtedness consisting of Capital Lease obligations, purchase money Indebtedness or mortgages or other Liens on specific assets (a) no portion of such Indebtedness matures prior to the latest maturity date of any of the Loans, and (b) no portion of such Indebtedness is issued or guaranteed by a Person that is, or as a result of such acquisition becomes, a Subsidiary that is not a Guarantor, and
(v) The aggregate principal amount of such assumed Indebtedness outstanding at any one time shall not exceed $20,000,000.
Appears in 1 contract
Sources: Credit Agreement (Shenandoah Telecommunications Co/Va/)
Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except:
(a) the Obligations;
(b) Senior Notes in an aggregate principal amount not to exceed $4,350,000,000;
(c) Indebtedness of any Subsidiary of Borrower Company's Wholly-Owned Subsidiaries to Borrower Company or any other such Subsidiary or of Borrower to any of its Company's other Wholly-Owned Subsidiaries, or of Company to any Wholly-Owned Subsidiary; provided that provided, (i) with respect to any such Indebtedness other than Indebtedness of a 106 Wholly-Owned Foreign Subsidiary, all such Indebtedness, if owed to a Credit Party, inter company Indebtedness shall be evidenced by the Intercompany Note or another promissory note notes and all such notes shall be subject to a the perfected First Priority Lien pursuant to of the applicable Collateral DocumentPledge and Security Agreement, (ii) all such inter company Indebtedness owing owed by a Credit Party Company to a any such Subsidiary that is not a Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of a the applicable promissory notes or an inter company subordination agreement with respect to such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness agreement, and (iii) with respect to any such Indebtedness other than Indebtedness of a Wholly-Owned Foreign Subsidiary, any payment by any Subsidiary of Company under any guaranty of the Obligations shall result in respect a pro tanto reduction of the amount of any inter company Indebtedness owing owed by a such Subsidiary that to Company or to any of its Subsidiaries for whose benefit such payment is made; provided, the foregoing clauses (i), (ii) and (iii) shall not a Credit Party apply to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d)any Purchase Money Note;
(dc) Indebtedness incurred by Borrower Company or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) obligations, or from guaranties or letters of credit, surety bonds, bonds or performance bonds or similar obligations securing the performance of Borrower Company or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower Company or any of its Subsidiaries;
(d) Indebtedness owed to any Person (including obligations in respect of Letters of Credit for the benefit of such Person) providing worker's compensation, health, disability or other employee benefits or property, casualty or liability insurance to Company or any Subsidiary thereof, or which may be deemed to exist pursuant to reimbursement or indemnification obligations to such Person;
(e) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal or similar obligations incurred in the ordinary course of business;
(f) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accountsDeposit Accounts;
(g) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees of and licensees to and of Borrower Company and its Subsidiaries;
(h) guaranties by Company of Indebtedness of its Subsidiaries or guaranties by a Subsidiary of Company of Indebtedness of Company or another Subsidiary with respect, in each case, to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.1;
(i) Indebtedness of a Securitization Entity in a Permitted Securitization Transaction that is Non-Recourse Debt (except for Standard Securitization Undertakings) with respect to Company and its Subsidiaries;
(j) Indebtedness described in Schedule 6.1, but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms thereof are no less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under clause (i) or clause (ii) above shall not be (1) Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (2) in a principal amount which exceeds the Indebtedness being renewed, extended or refinanced or (3) incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(k) Indebtedness with respect to Capital Leases in an aggregate amount not to exceed at any time $25,000,000;
(l) purchase money Indebtedness in an aggregate amount not to exceed at any time $15,000,000 (including any Indebtedness acquired in connection with a Permitted Acquisition or incurred in connection with the development of any Real Estate Asset, including the construction of improvements thereon); provided, any such Indebtedness (i) shall be recourse only to the asset acquired in connection with the incurrence of such Indebtedness, and (ii) shall constitute not less than 25% of the aggregate consideration paid with respect to such asset; and
(m) other Indebtedness in an aggregate amount not to exceed at any time $50,000,000; provided, at any time the Reduced Leverage/Improved Ratings Status is in effect, the foregoing amount of such Indebtedness shall be $100,000,000; provided, further, if at any time the Reduced Leverage/Improved Ratings Status ceases to be satisfied, any amount of Indebtedness then outstanding otherwise permitted pursuant to this Section 6.1(m) in excess of $50,000,000 shall not be deemed to be in contravention of this Section 6.1(m), but in no event shall Company and its Subsidiaries incur any additional Indebtedness pursuant to this Section 6.1(m) in excess of $50,000,000 until the Reduced Leverage/Improved Ratings Status is at such time of such incurrence satisfied.
Appears in 1 contract
Indebtedness. No Credit Party shall, nor shall it permit The Subscriber acknowledges that the Fund may incur indebtedness at any of its Subsidiaries totime and from time to time, directly or indirectlyindirectly through one or more subsidiaries (or series of subsidiaries) to borrow against the Subscriber’s Capital Commitments, createto finance investments, incurfor working capital, assume for expenses, for general corporate purposes (including to pay dividends or guarantydistributions) and to warehouse loans, including without limitation, one or more credit facilities to finance its investments and for other permissible activities. Those facilities may be secured by an assignment by way of security, pledge, charge, mortgage or other security interest, as the case may be, of or in (A) the Undrawn Capital Commitments, the proceeds of Drawdown Purchases and/or Catch-Up Purchases and the right to receive capital contributions from the Subscriber and Other Investors, (B) the Fund’s right to make drawdowns on those Capital Commitments, deliver Drawdown Notices and receive the proceeds of Drawdown Purchases and/or Catch-Up Purchases (including any powers of attorney or other delegation of the right to deliver Drawdown Notices), and/or (C) any deposit or other account into which the proceeds of Drawdown Purchases or Catch-Up Purchases will be deposited, and all claims, rights and interests that the Fund may have relating to or arising from clause (A), clause (B) or this clause (C) (including the right to exercise any remedies of the Fund under or related to this Subscription Agreement in respect of any such Drawdown Notice or Drawdown Purchase or Catch-Up Purchase), which may be granted to a lender or an agent for such a lender pursuant to any loan or security documentation entered into between the Fund and any lender (any such facility described in this sentence, a “Subscription Facility”). The Subscriber may, upon request by the Fund or the lender (if authorized to make such request under the relevant security documentation), be required to acknowledge the existence of a subscription credit facility, confirm the terms of the Subscriber’s Capital Commitment and the amount of its Unfunded Capital Commitment to the lender, to honor capital calls made by the lender or other credit party, to provide financial information reasonably requested by the lender and to execute other documents as may be reasonably requested in connection with obtaining such a facility. In connection with any such facility, the Subscriber agrees and acknowledges the following, for the benefit of the lenders: (1) it is and shall remain absolutely and unconditionally obligated to make Drawdown Purchases and/or Catch-Up Purchases pursuant to Section 3 (including, without limitation, those required as a result of the failure of any Other Investor to advance funds with respect to a Drawdown Notice made pursuant to a Capital Commitment with the Other Investor), pro rata among all non-Defaulting Shareholders (as defined below) based on their respective Capital Commitments and not in excess of the Subscriber’s Capital Commitment, without defense, counterclaim or offset (including without limitation any defense of fraud or mistake, or otherwise become any defense under Section 365 of the U.S. Bankruptcy Code but excluding, for the avoidance of doubt, any defense available under this Subscription Agreement), all of which will, to the fullest extent permitted by law, be waived as against the lenders (provided, however, that the foregoing waiver of defenses shall be of no force or remain directly effect if and to the extent that the existence of the waiver would constitute or indirectly liable result in there being a prohibited transaction under the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) or Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”)), (2) that all Drawdown Purchases or Catch-Up Purchases made by the Subscriber in connection with a facility will be made to an account (in which such lenders may have a security interest under relevant security documentation) as directed by the Fund or the lenders (if authorized to make such direction under the relevant security documentation), and (3) that any lender or credit party under a Subscription Facility is extending credit to the Fund in reliance on such Subscriber’s funding its Capital Commitments as such lender’s primary source of repayment. For the avoidance of doubt, a Drawdown Purchase or Catch-Up Purchase made by the Subscriber upon the request of a lender shall reduce the Subscriber’s Capital Commitment and be treated in all respects in the same manner as a Drawdown Purchase or Catch-Up Purchase, as applicable, made upon the request of the Fund. Notwithstanding anything in this Subscription Agreement to the contrary, the Subscriber acknowledges and agrees: (i) that any limitation with respect to any IndebtednessCapital Contribution shall not be applicable with respect to any Drawdown Notice the purpose of which is to repay amounts due under a Subscription Facility, except:
(a) regardless of whether the Obligations;
(b) Senior Notes in an aggregate principal amount not to exceed $4,350,000,000;
(c) Indebtedness of any Subsidiary of Borrower to Borrower related Drawdown Notice is issued by the Fund or any other such Subsidiary lender or of Borrower to any of its Subsidiariescredit party under the Subscription Facility; provided that (i) all such Indebtedness, if owed to a Credit Party, shall be evidenced by the Intercompany Note or another promissory note and shall be subject to a First Priority Lien pursuant to the applicable Collateral Document, (ii) all if such Indebtedness owing by a Credit Party Subscriber is entitled to a Subsidiary that is not a Credit Party withdraw from the Fund pursuant to any provision of this Subscription Agreement, prior to the effectiveness of such withdrawal, such Subscriber shall be unsecured and subordinated in right obligated to fund its pro rata share of payment Drawdown Purchases necessary to the payment in full of the Obligations pursuant to cure any borrowing base default under the terms of any Subscription Facility as a subordination agreement with respect to direct or indirect result of such Indebtedness substantially in the form of Exhibit J-2 among the Credit Parties and such Subsidiaries party to such Indebtedness and (iii) in respect of any Indebtedness owing by a Subsidiary that is not a Credit Party to a Credit Party, such Indebtedness is permitted as an Investment under the proviso to Section 6.6(d);
(d) Indebtedness incurred by Borrower or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including Indebtedness consisting of the deferred purchase price of property acquired in a Permitted Acquisition) or from guaranties or letters of credit, surety bonds, performance bonds or similar obligations securing the performance of Borrower or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Borrower or any of its Subsidiaries;
(e) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal or similar obligations incurred in the ordinary course of business;
(f) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accounts;
(g) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees of and licensees to and of Borrower and its Subsidiaries;withdrawal.
Appears in 1 contract