Indebtedness. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or otherwise become or remain liable with respect to any Indebtedness, except: (a) the Obligations (including any Additional Term Loans); (b) 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 any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note); (c) [reserved]; (d) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreement; (e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items; (f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs; (i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business; (h) guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06; (i) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.01; (j) [reserved]; (k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business; (l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business; (m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants; (n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants; (o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a); (p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that: (i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (x) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02), (ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time, (iii) [reserved], (iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause, (v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and (vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b); (q) [reserved]; (r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”); (s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes; (t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby; (u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x))); (v) [reserved]; (w) [reserved]; (x) [reserved]; (y) [reserved]; (z) Incremental Equivalent Debt; (aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims; (bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a Loan
Appears in 2 contracts
Sources: Term Loan Credit Agreement (Claros Mortgage Trust, Inc.), Term Loan Credit Agreement (Claros Mortgage Trust, Inc.)
Indebtedness. The Borrower shall notCreate, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly, createissue, incur, assume assume, become liable in respect of or otherwise become or remain liable with respect suffer to exist any IndebtednessIndebtedness thereof, except:
(a) the Obligations (including Indebtedness of any Additional Term Loans)Loan Party pursuant to any Loan Document;
(b) intercompany Indebtedness of the Borrower incurred pursuant to any Restricted Subsidiary and/or of any Restricted Subsidiary to the Borrower and/or any other Restricted Subsidiary; providedInvestment permitted by Section 7.6(f), that any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Notel) or (m);
(c) [reserved];
(d) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations Guarantee Obligations incurred in the ordinary course of business or with respect to Indebtedness permitted pursuant to this Agreement;
(d) Indebtedness outstanding on the Closing Date and listed on Schedule 7.1(d);
(iie) Indebtedness (including Capital Lease Obligations) secured by Liens permitted by Section 7.2(g) in respect an aggregate outstanding principal amount not to exceed at any time (x) $50,000,000, plus (y) an amount such that, subject to Section 1.3(d) (to the extent applicable) immediately after giving effect to the incurrence of letters any such Indebtedness and the use of creditproceeds thereof, bank guarantiesthe Consolidated Secured Leverage Ratio, surety bondscalculated on a pro forma basis for the period of four consecutive fiscal quarters most recently ended for which financial statements have been delivered hereunder prior thereto, performance bonds or similar instruments to support any of the foregoing itemswould not exceed 2.75:1.00;
(f) Indebtedness of the Borrower and/or or any Restricted Subsidiary Subsidiaries in respect of commercial credit cardsworkers’ compensation claims, stored value cardsself-insurance obligations, purchasing cardscustoms, treasury management servicesappeal, netting servicesperformance, overdraft protectionsbid and surety bonds and completion guaranties, check drawing servicesdeferred insurance premiums, automated payment services (including depositoryand similar obligations, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into each case in the ordinary course of business;
(hg) guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted Subsidiaries arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn by the Borrower or such Restricted Subsidiary with in the ordinary course of business against insufficient funds, so long as such Indebtedness is promptly repaid;
(h) letters of credit issued for the account of the Borrower or any Restricted Subsidiaries, so long as the sum of (i) the aggregate undrawn face amount thereof, (ii) any unreimbursed obligations in respect to Indebtedness otherwise permitted to be incurred thereof and (iii) the aggregate amount of pledges and deposits made pursuant to this Section 6.01 or other obligations 7.2(t) below does not prohibited by this Agreement; provided that in exceed the case of LC Commitment Amount at any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06time;
(i) Indebtedness of a joint venture as long as such Indebtedness is non-recourse to the Borrower and/or or any other Restricted Subsidiary existingof the Borrower (other than a Restricted Subsidiary the sole assets of which are the equity interests in one or more joint ventures); provided that notwithstanding the foregoing joint ventures may create, incur or pursuant to commitments existing, on the Closing Date and, assume Indebtedness with recourse to the extent Borrower or any other Restricted Subsidiary of the Borrower not to exceed $50,000,000 in excess of $6,000,000 described on Schedule 6.01an aggregate principal amount at any one time outstanding;
(j) [reserved]Indebtedness incurred by any Foreign Subsidiary in an aggregate outstanding principal amount for all such Foreign Subsidiaries at the close of business on any day not to exceed $50,000,000;
(k) secured Indebtedness of the Borrower and/or or any Restricted Subsidiary consisting of obligations owing under incentiveSubsidiaries (which may be guaranteed by the Guarantors) containing, supply, license or similar agreements entered into in the ordinary course good faith judgment of businessthe Borrower, then current market terms and conditions for similarly situated companies (but which terms and conditions shall not directly and explicitly restrict the ability of the Group Members to perform their obligations under the Loan Documents in any material respect or the ability of the Borrower to repay the Loans); provided that (i) no Event of Default exists or would result from the incurrence thereof, (ii) subject to Section 1.3(d) (to the extent applicable) immediately after giving effect to the incurrence of any such Indebtedness and the use of proceeds thereof the Consolidated Secured Leverage Ratio calculated on a pro forma basis for the period of four consecutive fiscal quarters most recently ended for which financial statements have been delivered, would not exceed 2.75:1.00, (iii) in the case of syndicated or bilateral credit agreements, indentures or note purchase agreements, any negative or financial covenants applicable to such agreements that are more restrictive (with respect to any indenture or note purchase agreement, taken as a whole) than those contained in this Agreement shall be deemed to be incorporated in this Agreement, mutatis mutandis, (iv) the final scheduled maturity date of such Indebtedness is no earlier than the Maturity Date and the weighted average life to maturity of such Indebtedness is equal to or longer than the remaining average weighted life of the Revolving Facility (other than for nominal amortization of 5% or less of the principal amount of such Indebtedness per year) and (v) such Indebtedness shall not be guaranteed by any Person that is not a Guarantor and shall not be secured by any assets other than the Collateral; provided, further, any Indebtedness incurred by a Restricted Subsidiary that is not a Guarantor shall, together with any Indebtedness incurred by a Restricted Subsidiary that is not a Guarantor in reliance on clause (o), not exceed $100,000,000 at any one time outstanding;
(l) Indebtedness of the Borrower and/or or any of its Restricted Subsidiary consisting Subsidiaries acquired pursuant to a Permitted Acquisition (or Indebtedness assumed at the time of a Permitted Acquisition of an asset securing such Indebtedness); provided that such Indebtedness was not incurred in connection with, or in anticipation or contemplation of, such Permitted Acquisition;
(im) the financing contingent obligations with respect to customary indemnification obligations in favor of insurance premiumssellers (and Affiliates or assignees thereof) in connection with Acquisitions permitted under Section 7.6 and purchasers (and Affiliates or assignees thereof) in connection with Dispositions permitted under Section 7.4;
(n) provided that no Event of Default shall have occurred and be continuing or would occur as a consequence thereof, Indebtedness which serves to refund, replace, extend repurchase, redeem or refinance any Indebtedness permitted under paragraphs (d), (iie), (k), (l) take-or-pay obligations contained in supply arrangementsor (o) of this Section, or any Indebtedness issued to so refund, replace, extend, repurchase or refinance such Indebtedness, including, in each case, in the ordinary course of business and/or additional Indebtedness incurred to pay premiums (iii) obligations to reacquire assets or inventory including tender premiums), defeasance costs and fees and expenses in connection with customer financing arrangements in therewith (collectively, the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Permitted Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereofat or prior to its respective maturity; provided provided, however, that:
(i) the principal amount weighted average life to maturity 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 Permitted Refinancing Indebtedness with respect shall not be shorter than the weighted average life to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the such refinanced Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement refinancing;
(it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, ii) to the extent the Liens securing such Permitted Refinancing Indebtedness were contractually refinances Indebtedness subordinated at time of such refinancing or pari passu to the Liens on the Collateral securing the Initial Term LoansObligations, the Liens securing such Permitted Refinancing Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) is subordinated or are subordinated pari passu 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, Obligations at least to the Lenders than those applicable to the Liens securing same extent as the Indebtedness being refinanced, refunded or refinanced;
(iii) such Permitted Refinancing Indebtedness shall not be in a principal amount in excess of the principal amount of, premium, if any, accrued interest on, and related fees and expenses of, the Indebtedness being refunded, replaced, taken extended, repurchased, redeemed or refinanced (including any premium, expenses, costs and fees incurred in connection with such refund, replacement or refinancing);
(iv) the obligors in respect of such Permitted Refinancing Indebtedness (including in their capacities as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (Bprimary obligor and guarantor) such Indebtedness is incurred by the obligor or were obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), ; and
(viv) in the case of Replacement Notes, (A) any Liens securing such Permitted 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 Indebtedness that is secured by Liens on the Collateral shall be subject are not extended to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is property which does not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to secure the Indebtedness being refinanced (as determined by and, if the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in Liens securing the Indebtedness being refinanced (other than any terms which are applicable only after subject to intercreditor arrangements with the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitationLenders, any amendment or modification Liens securing such Permitted Refinancing Indebtedness are subject to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long intercreditor arrangements at least as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions favorable (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans Administrative Agent and the Lenders 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)the intercreditor arrangements applicable to the Indebtedness being refinanced;
(qo) [reserved];
(r) unsecured Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount unsecured Guarantee Obligations of any Net Proceeds or contribution utilized to incur Indebtedness Guarantor in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness respect of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing such unsecured Indebtedness; provided that (i) deferred compensation to current no Event of Default exists or former directors, officers, employees, members of management, managers, and consultants of would result from the Borrower and/or any Restricted Subsidiary in the ordinary course of business incurrence thereof and (ii) deferred compensation or other similar arrangements in connection with subject to Section 1.3(d) (to the Transactionsextent applicable) immediately after giving effect to the incurrence of any such Indebtedness and the use of proceeds thereof, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness the Consolidated Leverage Ratio, calculated on a pro forma basis for the period of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the four consecutive fiscal quarters most recently ended Test Periodfor which financial statements have been delivered prior thereto, plus (ii) at the election of the Borrower (and without duplication)would not exceed 3.00:1.00; provided, any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
such Indebtedness shall not be guaranteed by any Person that is not a Guarantor and (y) [reserved];
(z) Incremental Equivalent Debt;
(aa) any Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any a Restricted Subsidiary that is not a Loan Party under Guarantor shall, together with any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Indebtedness incurred by a Restricted Subsidiary that is not a LoanGuarantor in reliance on clause (k), not exceed $100,000,000 at any one time outstanding;
(p) to the extent constituting Indebtedness, obligations under treasury, depositary or other cash management services entered into in the ordinary course of business; and
(q) Indebtedness in respect of letters of credit in an aggregate face amount not exceeding $5,000,000 (or such greater amount solely to the extent resulting from fluctuations in currency exchange rates) at any one time outstanding.
Appears in 2 contracts
Sources: Credit Agreement (Teradyne, Inc), Credit Agreement (Teradyne, Inc)
Indebtedness. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectlyIncur, create, incurassume, assume or otherwise become or remain liable be liable, directly, indirectly or contingently, in any manner with respect to, or permit to exist, any IndebtednessIndebtedness or liability, except:
(a) Indebtedness of Borrowers to Lenders hereunder and under the Obligations (including any Additional Term Loans)Notes, together with Indebtedness owed to Underlying Issuers with respect to Underlying Letters of Credit;
(b) Indebtedness of among Borrowers and their Subsidiaries permitted by the Borrower to any Restricted Subsidiary and/or of any Restricted Subsidiary to the Borrower and/or any other Restricted Subsidiary; provided, that any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note)Affiliate Subordination Agreement;
(c) [reserved]the Guarantees of Affiliates, if any, required by Section 2.16;
(d) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters endorsements of credit, bank guaranties, surety bonds, performance bonds or similar negotiable instruments to support any of the foregoing items;
(f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into for collection in the ordinary course of business;
(he) guarantees by Indebtedness existing on the Borrower and/or any Restricted Subsidiary date hereof and described in Schedule 7.01 hereto; provided, however, that the terms of such Indebtedness shall not be modified or other obligations amended in an adverse respect nor shall payment thereof be modified without the prior written consent of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06Required Lenders;
(f) (i) Indebtedness under Capital Leases; (ii) Indebtedness consisting of purchase money indebtedness incurred in the purchase of real estate, equipment and Licenses to be used in the Borrowers’ businesses; and (iii) Indebtedness arising under surety, indemnity, performance or other similar bonds posted for a Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, relating to the extent in excess construction and/or build-out of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into Station and issued in the ordinary course of business;
(l) Indebtedness of the , and any other performance or similar bonds posted for a 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 and issued in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period; provided, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person however, that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed all Indebtedness incurred by Borrowers permitted by this subsection (f) shall not exceed $12,000,000 in the aggregate outstanding at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and any time, (B) was not created more than $2,000,000 of Indebtedness permitted by this subsection (f) shall be owed to a single lender or its Affiliates, and (C) all Indebtedness incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary under clauses (except as otherwise permitted hereini) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 subsection (“Refinancing Indebtedness”f) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does shall not exceed the principal amount acquisition price 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 assets acquired 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), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one yearthereto; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vig) in Judgments against the case of Replacement NotesBorrowers, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of $250,000 in the amount of Net Proceeds received by the Borrower from aggregate at any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managerstime, and consultants of the Borrower and/or any Restricted Subsidiary discharged, satisfied or bonded in the ordinary course of business and full within sixty (ii60) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a Loandays.
Appears in 2 contracts
Sources: Credit Agreement (Coconut Palm Acquisition Corp.), Credit Agreement (Coconut Palm Acquisition Corp.)
Indebtedness. The Borrower shall Loan Parties will not, nor shall it and will not permit any of its Restricted their Subsidiaries to, directly or indirectly, at any time create, incur, assume or otherwise become or remain liable with respect suffer to exist any Indebtedness, exceptIndebtedness other than:
(a) Indebtedness under the Obligations (including any Additional Term Loans)Loan Documents;
(b) Indebtedness of existing on the Borrower to Closing Date and set forth in Schedule 8.1, and any Restricted Subsidiary and/or of any Restricted Subsidiary to the Borrower and/or any other Restricted Subsidiary; provided, that any Refinancing Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations in respect of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note)Indebtedness;
(c) (i) Indebtedness (including Capitalized Lease Obligations and purchase money Indebtedness) to finance all or any part of the purchase, lease, construction, installment, repair or improvement of property, plant or equipment or other fixed or capital assets and software embedded in such equipment, acquired or held by Borrowers; provided that such Indebtedness is incurred within 30 days after the purchase, lease, construction, installation, repair or improvement of the property that is the subject of such Indebtedness, and (ii) any Refinancing Indebtedness in respect of such Indebtedness;
(d) [reserved];
(d) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items[reserved];
(f) Indebtedness comprised of Permitted Intercompany Advances;
(g) to the extent constituting Indebtedness, Hosting Obligations;
(h) Guarantees of Indebtedness of the Borrower and/or Loan Parties or their Subsidiaries permitted to be incurred under this Agreement; provided that (i) such guarantees are not prohibited by the provisions of Section 8.10; (ii) no such guarantee by 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 shall be permitted unless such Subsidiary shall have also provided a guarantee of the foregoing and/or otherwise Obligations, and (iii) if the Indebtedness being guaranteed is subordinated to the Obligations, such guarantee shall be subordinated to the guarantee of the Obligations on terms at least as favorable to the Lenders as those contained in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programsthe subordination of such Indebtedness;
(i) guarantees by the Borrower and/or bridge loans in an aggregate principal amount of up to $20,000,000 at any Restricted Subsidiary time outstanding;
(j) endorsement of the obligations of suppliers, customers and licensees negotiable instruments for deposit or collection in the ordinary course of business, ;
(iik) 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(i) overdraft facilities, employee credit card programs, netting services, CRE Finance Assets or Real Estate Investments or progress payments automatic clearinghouse arrangements and other cash management and similar arrangements, and in connection with such assetssecurities and commodities arising in connection with the acquisition or disposition of Permitted Investments and not any obligation in connection with margin financing, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(h) guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.01;
(jii) [reserved];
, (kiii) Indebtedness the endorsement of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license instruments for deposit or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (x) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iiiiv) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved]] and (vi) Indebtedness owed to any Person providing property, casualty, business interruption or liability insurance to any Loan Party or any of its Subsidiaries, 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 the annual premium for such insurance;
(w1) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) any other unsecured Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under or any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a Loantheir Subsidiaries;
Appears in 2 contracts
Sources: Credit Agreement (Adit EdTech Acquisition Corp.), Credit Agreement (Adit EdTech Acquisition Corp.)
Indebtedness. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly, to create, incur, assume or otherwise become or remain liable with respect to any Indebtedness, except:
(a) the Secured Obligations (including any Additional Term Loans and any Additional Revolving Loans);
(b) Indebtedness of (i) the Borrower to Holdings and/or any Restricted Subsidiary, (ii) of Holdings to the Borrower and/or any Restricted Subsidiary and/or (iii) of any Restricted Subsidiary to Holdings, the Borrower and/or any other Restricted Subsidiary; provided that in the case of any Indebtedness of any Restricted Subsidiary that is not a Loan Party owing to the Borrower or any Restricted Subsidiary that is a Loan Party, such Indebtedness shall be permitted as an Investment under Section 6.05; provided, further, that any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party incurred in reliance on this clause (b) must be unsecured and expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note);
(c) [reserved];
(d) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with the Transactions, any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital StockStock or other Investments, and Indebtedness arising from guaranteesguaranties, letters of credit, bank guaranteesguaranties, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) as a result of or pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any 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 Banking Services and/or otherwise in connection with Cash management and Deposit Accounts, including Banking Services Obligations and incentive, supplier finance or similar programs;
(i) guarantees 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, services, CRE Finance Assets goods or Real Estate Investments services or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(h) guarantees Guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or 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 6.066.05;
(i) Indebtedness of Holdings, the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent Date; provided that any such Indebtedness or commitment having an outstanding principal amount in excess of $6,000,000 2,500,000 shall be described on Schedule 6.01;
(j) [reserved]so long as no Event of Default then exists, Indebtedness of Restricted Subsidiaries that are not Loan Parties; provided that the aggregate outstanding principal amount of such Indebtedness shall not exceed the greater of $12,500,000 and 25% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) so long as no Event of Default then exists, Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations Capital Leases and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 12,500,000 and 0.7525% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an any acquisition or any other similar investment permitted hereunder after the Closing DateInvestment; provided that that:
(i) no Event of Default then exists;
(ii) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation thereof, and
(iii) after giving effect to such Indebtedness on a Pro Forma Basis, either:
(A) the Secured Leverage Ratio does not exceed 7.50:1.00, calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period (assuming for purposes of such acquisition or investment or calculation that such Person becoming a Restricted Subsidiary Indebtedness constitutes Consolidated Secured Debt); or
(except as otherwise permitted hereinB) and (ii) the Borrower such Indebtedness is in pro forma compliance with an aggregate principal amount outstanding not to exceed the Financial Covenantsgreater of $5,000,000 and 10% 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 the Borrower 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 subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower any Parent Company permitted by Section 6.04(a6.03(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (j), (m), (n), (q), (u), (r), (u) w), (y), and (z) of this Section 6.01 (in any case, including any refinancing Indebtedness incurred in respect thereof, “Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (x1) 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 (y2) 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), (r) and (u) and/or (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)y), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial 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 Refinancing Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments prepayment thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved]the terms of any Refinancing Indebtedness with an original principal amount in excess of the Threshold Amount (other than any Indebtedness of the type described in Section 6.01(m)) (excluding, to the extent applicable, pricing, fees, premiums, rate floors, optional prepayment, redemption terms or subordination terms and, with respect to Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) above, security), are not, taken as a whole (as reasonably determined by the Borrower), more favorable to the lenders providing such Indebtedness than those applicable to the Indebtedness being refinanced, refunded or replaced (other than (A) any covenants or any other provisions, taken as a whole, applicable only to periods after the applicable maturity date of the debt then-being refinanced as of such date, (B) any covenant or provision which constitutes a then-current market term for the applicable type of Indebtedness or (C) any covenant or other provision which is conformed (or added) to the Loan Documents for the benefit of the Lenders or, as applicable, the Administrative Agent pursuant to an amendment to this Agreement effectuated in reliance on Section 9.02(d)(ii)),
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (j), (m), (n), (q) (solely as it relates to the amount of such Indebtedness that may be incurred by Restricted Subsidiaries that are not Loan Parties incurred pursuant to (x) clause (i) therein and (y) the proviso to clause (ii) therein), (r), (u), (w) (solely as it relates to the amount of such Indebtedness that may be incurred by Restricted Subsidiaries that are not Loan Parties incurred pursuant to (x) clause (i) therein and (y) the proviso to clause (ii) therein), (y) and (uz) (solely as it relates to the Unrestricted Incremental Amount) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts amount outstanding in reliance on the relevant clauseclause 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 incurred as Replacement Term Loans6.01, (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, to the extent and if the Liens securing such Indebtedness were originally contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those (1) applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or (2) set forth in, or otherwise subject to, an Acceptable in any applicable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.016.01 (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, (x1) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y2) 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(b6.03(b) (other than Section 6.04(b)(i6.03(b)(i)), and (D) as of the date of the incurrence of such Indebtedness and after giving effect thereto, no Event of Default then exists, and
(vi) in the case of Refinancing Indebtedness constituting Replacement NotesDebt, (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 secured by Liens on pari passu or junior with respect to the Collateral shall be subject to any applicable Acceptable an Intercreditor AgreementsAgreement, (B) such if the Indebtedness being refinanced, refunded or replaced is secured, it is not secured by any assets other than the Collateral and Collateral, (C) if the Indebtedness being refinanced, refunded or replaced is Guaranteed, it shall not be incurred or guaranteed Guaranteed by any Person subsidiary of the Borrower other than one or more Loan Parties, Parties and (CD) such Refinancing Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such 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 lien basis may participate (x) in any voluntary prepayments prepayment of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments prepayment of Term Loans as set forth in Section 2.11(b2.11(b)(vi);
(q) [reserved];
(r) an additional unlimited amount of Indebtedness of the Borrower and/or any Restricted Subsidiary incurred to finance any acquisition or similar Investment permitted hereunder after the Closing Date so long as:
(i) after giving effect to such acquisition or similar Investment on a Pro Forma Basis (in an each case, without “netting” the cash proceeds of the applicable Indebtedness being incurred and, in the case of any revolving credit facility then being incurred or established, assuming a full drawing of such revolving credit facility):
(A) if such Acquisition Ratio Debt constitutes First Lien Debt, the First Lien Leverage Ratio does not exceed 7.50:1.00,
(B) if such Acquisition Ratio Debt constitutes Junior Lien Debt, the Secured Leverage Ratio does not exceed 7.50:1.00; or
(C) if such Indebtedness is secured by a Lien on any asset that does not constitute Collateral or is unsecured, the Total Leverage Ratio does not exceed 8.00:1.00; and
(ii) the aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness Acquisition Ratio Debt incurred in reliance on this clause (r)Section 6.01(q) by Restricted Subsidiaries that are not Loan Parties shall not, a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or at any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation time, exceed an amount equal to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 15,000,000 and 3.230% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(viii) [reserved];if such Acquisition Ratio Debt is issued or incurred by any Loan Party and consists of third party Indebtedness for borrowed money:
(wA) [reserved];the final maturity date of such Indebtedness is no earlier than the Latest Term Loan Maturity Date on the date of the issuance or incurrence thereof,
(xB) [reserved];the Weighted Average Life to Maturity applicable to such Indebtedness is no shorter than the Weighted Average Life to Maturity of the then-existing Term Loans,
(yC) [reserved];
(z) Incremental Equivalent Debt;
(aa) if such Indebtedness (including obligations in respect of letters of creditis secured, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a Loanit may no
Appears in 2 contracts
Sources: Credit Agreement (Definitive Healthcare Corp.), Credit Agreement (Definitive Healthcare Corp.)
Indebtedness. The Borrower shall notNo Loan Party will, nor shall will it permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create, incur, assume or otherwise become or remain liable with respect suffer to exist any Indebtedness, except:
(a) the Obligations (including any Additional Term Loans)Secured Obligations;
(b) Indebtedness existing on the Petition Date, including the Prepetition Secured Obligations;
(c) Guarantees by any Borrower of the Borrower to any Restricted Subsidiary and/or of any Restricted Subsidiary to the Borrower and/or any other Restricted Subsidiary; provided, that any Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of any Borrower or any other Subsidiary, provided that (i) the Indebtedness so Guaranteed is permitted by this Section 6.01, (ii) Guarantees by any Borrower or any other Loan Party owed to of Indebtedness of any Restricted Subsidiary that is not a Loan Party must shall be expressly subject to Section 6.04 and (iii) Guarantees permitted under this clause (c) shall be subordinated to the Secured Obligations of such Loan Party on the same terms that are reasonably acceptable as the Indebtedness so Guaranteed is subordinated to the Administrative Agent (including pursuant to an Intercompany Note);
(c) [reserved]Secured Obligations;
(d) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant owed to any such agreement;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
(f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankersPerson providing workers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(h) guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (x) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 paycompensation, health, disability or other employee benefits or property, casualty or liability insurance insurance, pursuant to reimbursement or self-insurance or other Indebtedness with respect indemnification obligations to reimbursement-type obligations regarding workers compensation claimssuch Person, in each case incurred in the ordinary course of business;
(bbe) Indebtedness of any Restricted Subsidiary Loan Party in respect of performance bonds, bid bonds, appeal bonds, surety bonds and similar obligations, in each case provided in the ordinary course of business;
(f) obligations under any agreement governing the provision of treasury or cash management services, including deposit accounts, overnight draft, credit cards, debit cards, p-cards (including purchasing cards and commercial cards), funds transfer, automated clearinghouse, zero balance accounts, returned check concentration, controlled disbursement, lockbox, account reconciliation and reporting and trade finance services and other cash management services; and
(g) other Indebtedness in an aggregate principal amount not exceeding $100,000 at any time outstanding. Notwithstanding the foregoing, and except for the Carve-Out as provided in the DIP Orders, no Indebtedness permitted under this Section 6.01 shall have an administrative expense claim status under the Bankruptcy Code that is not a Loan Party under any Asset Financing Facility senior to or CRE Financing pari passu with (and any guarantees and co-borrower obligations x) the DIP Superpriority Claims or (y) the superpriority administrative expense claims of the BorrowerPrepetition Administrative Agent and the Prepetition Secured Parties, any Restricted Subsidiary that is a Loanin each case, as set forth herein and in the DIP Orders.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (Bed Bath & Beyond Inc), Senior Secured Super Priority Debtor in Possession Term Loan Credit Agreement
Indebtedness. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectlyIncur, create, incur, assume or otherwise become or remain liable with respect permit to exist any Indebtedness, except:
(a) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Obligations Closing Date (including provided, that any Additional Term Loanssuch Indebtedness (x) that is owed to any person other than the Borrower and one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be set forth in Part A of Schedule 6.01 and (y) owing to the Borrower or one or more of its Subsidiaries in excess of $5,000,000 shall be set forth on Part B of Schedule 6.01) and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(e);
(b) Indebtedness of the Borrower to any Restricted Subsidiary and/or of any Restricted Subsidiary to the Borrower and/or any other Restricted Subsidiary; provided, that any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent created hereunder (including pursuant to an Intercompany Note)Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and any Refinancing Notes incurred to Refinance such Indebtedness;
(c) [reserved]Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes;
(d) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior owed to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
(f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(h) guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (x) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, credit or bank guaranties, surety bonds, performance bonds guarantees or similar instruments with respect to such Indebtednessfor the benefit of) incurred by the Borrower 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 payperson providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or self-insurance any Subsidiary, pursuant to reimbursement or other Indebtedness indemnification obligations to such person, in each case in the ordinary course of business or consistent with respect to reimbursement-type obligations regarding workers compensation claimspast practice or industry practices;
(bbe) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary; provided, that (i) Indebtedness of any Restricted Subsidiary that is not a Loan Party under owing to a Loan Party incurred pursuant to this Section 6.01(e) shall be subject to Section 6.04(b) and (ii) Indebtedness owed by any Asset Financing Facility or CRE Financing (and Loan Party to any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is not a LoanGuarantor incurred pursuant to this Section 6.01(e) shall be subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practices;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services, in each case incurred in the ordinary course of business;
(i) Indebtedness of a Subsidiary acquired after the Closing Date or a person merged or consolidated with the Borrower or any Subsidiary after the Closing Date and Indebtedness otherwise assumed by any Loan Party in connection with the acquisition of assets or Equity Interests (including a Permitted Business Acquisition), where such acquisition, merger, amalgamation or consolidation is not prohibited by this Agreement; provided, that (x) Indebtedness incurred pursuant to this subclause (h)(i) shall be in existence prior to the respective acquisition of assets or Equity Interests (including a Permitted Business Acquisition) and shall not have been created in contemplation thereof or in connection therewith, and (y) after giving effect to the incurrence of such Indebtedness (whether secured or unsecured), the Total Net Leverage Ratio shall not be greater than (A) 5.75 to 1.00 or (B) the Total Net Leverage Ratio in effect immediately prior thereto, in each case calculated on a Pro Forma Basis for the then most recently ended Test Period; and (ii) any Permitted Refinancing Indebtedness incurred to Refinance any such Indebtedness;
(i) (x) Capitalized Lease Obligations, mortgage financings and other Indebtedness incurred by the Borrower or any Subsidiary prior to or within 360 days after the acquisition, lease, construction, repair, replacement or improvement of the respective property (real or personal, and whether through the direct purchase of property or the Equity Interest of any person owning such property) permitted under this Agreement in order to finance such acquisition, lease, construction, repair, replacement or improvement, in an aggregate principal amount that immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(i), would not exceed the greater of $175.0 million and 7.5% of Consolidated Total Assets when incurred, created or assumed, and (y) any Permitted Refinancing Indebtedness in respect thereof;
Appears in 2 contracts
Sources: Credit Agreement (CMC Materials, Inc.), Credit Agreement (Cabot Microelectronics Corp)
Indebtedness. The Borrower Company shall not, nor shall it permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectlyincur, create, incur, assume or otherwise become or remain liable with respect suffer to exist any Indebtedness, except:
(a) the Loans, any Notes or other Secured Obligations (arising under the Loan Documents or any Secured Swap Agreement or any guaranty of or suretyship arrangement for the Loans, any Notes or other Secured Obligations arising under the Loan Documents or any Secured Swap Agreement, including any Additional Term Loans)deferred put premiums associated with Swap Agreements entered into with an Approved Counterparty;
(b) Specified Existing Indebtedness of in the Borrower to any Restricted Subsidiary and/or of any Restricted Subsidiary to the Borrower and/or any other Restricted Subsidiary; provided, that any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party aggregate outstanding amounts set forth on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note)Schedule 9.02;
(c) [reserved]Specified Additional Bond Indebtedness, so long as, after giving pro forma effect to the incurrence of such Specified Additional Bond Indebtedness, the Aggregate Weighted Average Life to Maturity of all outstanding Debt for Borrowed Money is greater than the Weighted Average Life to maturity of the Loans;
(d) Specified Additional Factoring Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior an aggregate outstanding amount not to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreementexceed $10,000,000;
(e) Indebtedness associated with worker’s compensation claims, performance, bid, surety or similar bonds or surety obligations required by Governmental Requirements or third parties in connection with the operation of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business Oil and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing itemsGas Properties;
(f) Indebtedness between or among the Company and any Subsidiaries to the extent permitted by Section 9.05(e); provided that such Indebtedness is not held, assigned, transferred, negotiated or pledged to any Person other than the Borrower or a Guarantor and, provided further, that any such Indebtedness owed by the Borrower or a Guarantor shall be subordinated to the Secured Obligations on terms set forth in the Guarantee and Collateral Agreement;
(g) Indebtedness with respect to any obligations of the Borrower and/or Company or any Restricted Subsidiary of its Subsidiaries owed to any Lender or Affiliate of any Lender in respect of commercial credit cardstreasury management arrangements, stored value cards, purchasing cards, treasury depositary or other cash 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 treasury management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters line 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;; and
(h) guarantees by Indebtedness under the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Business Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness Agreement in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary on or the assets subject prior to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) January 15, 2025, $585,903.26 and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former directorafter January 15, officer2025, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (x) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a Loan0.
Appears in 2 contracts
Sources: Senior Secured Credit Agreement (Phoenix Capital Group Holdings, LLC), Senior Secured Credit Agreement (Phoenix Capital Group Holdings, LLC)
Indebtedness. The Borrower shall notNo Loan Party shall, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly, create, incurincur or assume, assume or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except:
(a) (i) the Obligations and (including any Additional Term Loans)ii) the “Obligations” under and as defined in the ABL Credit Agreement; provided, that the aggregate amount of such Indebtedness under this clause (ii) does not exceed $287,500,000;
(b) Indebtedness of the Borrower or its Restricted Subsidiaries with respect to Capital Lease Obligations, sale-lease back transactions and purchase money Indebtedness in an aggregate principal amount not to exceed $50,000,000 at any Restricted Subsidiary and/or time; provided that any such Indebtedness shall be secured only by the asset (including all accessions, attachments, improvements and the proceeds thereof) acquired in connection with the incurrence of such Indebtedness;
(c) Unsecured Indebtedness in an aggregate outstanding principal amount not to exceed at any time $100,000,000;
(d) Indebtedness of any Restricted Subsidiary to the Borrower and/or or to any other Restricted Subsidiary, or of the Borrower to any Restricted Subsidiary; provided, provided that any (i) all such Indebtedness of any owing by a Loan Party owed to any Restricted Subsidiary that is not a Guarantor shall be unsecured and subordinated in right of payment to the payment in full of the Obligations and (ii) any such Indebtedness of any Restricted Subsidiary that is not a Guarantor owing to any Loan Party must shall be expressly subordinated subject to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Notelimitations set forth in Section 6.7(d);
(c) [reserved];
(d) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) which may be deemed to exist pursuant to tendersany Guarantees, performance, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred (including in the ordinary course of business and (iiconnection with workers’ compensation) or obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds bank guarantees or similar instruments to support any of the foregoing items;
(f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees related thereto incurred in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course or pursuant to any appeal obligation, appeal bond or letter of business credit in respect of obligations judgments that do not constitute an Event of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments Default under Section 8.1(k);
(f) Indebtedness in connection with such assetscash management agreements, goods netting services, overdraft protections and services and (iii) Indebtedness otherwise 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 businessconnection with deposit accounts;
(hg) guarantees Guarantees by the Borrower and/or any of Indebtedness of a Restricted Subsidiary or Guarantees by a Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any another Restricted Subsidiary with respect respect, in each case, to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement6.1; provided provided, that (i) if the Indebtedness that is being guarantied is unsecured and/or subordinated to the Obligations, the Guarantee shall also be unsecured and/or subordinated to the Obligations and (ii) in the case of any Guarantee Guarantees by any a Loan Party of the obligations of any non-Loan Partya Restricted Subsidiary that is not a Guarantor, the related Investment is such Guarantees shall be permitted under by Section 6.066.7;
(ih) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements Swap Agreements entered into in the ordinary course of business;
order to effectively cap, collar or exchange interest rates (lfrom floating to fixed rates, from one floating rate to another floating rate or otherwise) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition interest-bearing liability or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary Subsidiary, or to any stockholder of the Borrower hedge currency exposure or any current to hedge energy costs or former directorexposure, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (x) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (andwhich, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction are not entered into for speculative purposes;
(ti) other Indebtedness of the Borrower and/or any Restricted Subsidiary representing not otherwise permitted hereunder so long as (i) deferred compensation after giving effect to current or former directorsthe incurrence of such Indebtedness, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Borrower’s Consolidated Total Assets Leverage Ratio, calculated on a Pro Forma Basis as of the last day of the fiscal quarter most recently ended Test Periodfor which financial statements are required to be delivered pursuant to Section 5.1, plus does not exceed 3.00 to 1.00 and (ii) no Default or Event of Default has occurred and is continuing or would result therefrom; and
(j) Indebtedness in an aggregate outstanding amount not to exceed at any time $100,000,000 consisting of purchase price adjustments, earn-outs, deferred compensation, or other arrangements representing acquisition consideration or deferred payments of a similar nature incurred in connection with any Permitted Acquisition (and, in the election case of deferred compensation representing, or in substance representing, consideration or a portion of the Borrower purchase price in connection with such Permitted Acquisition) or other Investment permitted by Section 6.7 (and without duplicationcollectively, “Deferred Payment Obligations”), the amount of which shall be deemed to be the amount required to be accrued as a liability in accordance with GAAP. Notwithstanding the foregoing exceptions, no Loan Party shall permit FitBit International Holdings or any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided of its Subsidiaries or parent entities that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of creditare not Loan Parties to, bank guarantiescreate, surety bondsincur or assume, performance bonds or similar instruments otherwise become or remain directly or indirectly liable with respect to such Indebtednessany Indebtedness permitted under this Section 6.1 (other than Indebtedness permitted under Section 6.1(d) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not owed to a Loan Party under or to a Subsidiary of FitBit International Holdings) in excess of $18,000,000 at any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a Loantime outstanding.
Appears in 2 contracts
Sources: Revolving Credit and Guaranty Agreement (Fitbit Inc), Revolving Credit and Guaranty Agreement (Fitbit Inc)
Indebtedness. The Borrower shall will not, nor shall it and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectlyincur, create, incur, assume or otherwise become or remain liable with respect suffer to exist any Indebtedness, except:
(a) the Obligations (including any Additional Term Loans)arising under the Loan Documents or the Secured Swap Agreements;
(b) Indebtedness under Capital Leases or that constitutes Purchase Money Indebtedness; provided that the aggregate principal amount of the Borrower all Indebtedness described in this Section 9.02(b) at any one time outstanding shall not exceed an amount equal to any Restricted Subsidiary and/or of any Restricted Subsidiary to the Borrower and/or any other Restricted Subsidiary; provided, that any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note)$10,000,000;
(c) [reserved];
Indebtedness (dother than Indebtedness for borrowed money) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunderworker’s compensation claims, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stockperformance bonds, and Indebtedness arising from guarantees, letters of credit, bank guaranteesbid bonds, surety bonds, performance appeal bonds, customs bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
(f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(hd) guarantees by intercompany Indebtedness (x) between the Borrower and/or and any Restricted Subsidiary of Indebtedness Guarantor, (y) between Guarantors, or other obligations of (z) between the Borrower and any Subsidiary that is not a Guarantor; provided that (i) such Indebtedness is not held, assigned, transferred, negotiated or pledged to any Restricted Subsidiary Person other than a Loan Party (or under the Security Instruments), (ii) any such Indebtedness owed by a Loan Party shall be subordinated to the Obligations on terms set forth in the Guarantee and Collateral Agreement; and (iii) with respect to clause (z) hereof, such intercompany Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations shall not prohibited by this Agreement; provided that in the case of any Guarantee exceed $5,000,000.
(e) guarantees by any Loan Party of the obligations Indebtedness of any non-other Loan Party, the related Investment Party that is otherwise permitted under this Section 6.069.02;
(if) Indebtedness endorsements of the Borrower and/or any Restricted Subsidiary existing, negotiable instruments for deposit or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into collection in the ordinary course of business;
(lg) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of incurred to finance insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, premiums in the ordinary course of business and/or in an amount not to exceed such insurance premiums;
(iiih) obligations to reacquire assets Indebtedness arising from the honoring by a bank or inventory in connection with customer financing arrangements other financial institution of a check, draft or other similar instrument drawn against insufficient funds in the ordinary course of business;
(mi) Indebtedness of the Borrower and/or Permitted Senior Notes and any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder guarantees thereof incurred after the Closing Covenant Changeover Date; provided that (i) both before and immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, no Default or Event of Default has occurred and is continuing or would result therefrom; (ii) such Indebtedness and any guarantees thereof (A) existed are on terms and conditions that are at the time such Person became a Restricted Subsidiary or the assets subject least as favorable to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to Restricted Subsidiaries as market terms for issuers of similar size and credit quality given the then prevailing market conditions and in 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), (r) and (u) (and other than customary bridge loans with a maturity date of event are not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower)more restrictive, taken as a whole, to the Lenders than those applicable to contained in this Agreement and the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, other Loan Documents and (B) do not contain any financial covenant maintenance tests; (iii) such Indebtedness does not have any scheduled principal amortization prior to the date that is 180 days after the Maturity Date; (iv) such Indebtedness does not mature sooner than the date that is 180 days after the Maturity Date; (v) such Indebtedness does not have any mandatory prepayment, redemption, defeasance, tender, sinking fund or repurchase provisions (other than (A) a customary change of control tender offer provision and (B) a customary asset tender offer provision to the extent proceeds from asset dispositions are permitted to be applied first to the prepayment of the Obligations); (vi) both before, and immediately after giving effect to, the incurrence of such Indebtedness and the use of proceeds thereof, the Borrower is in Pro Forma Compliance; (vii) no Subsidiary or other Person is required to guarantee such Indebtedness unless such Subsidiary or other Person has guaranteed the Obligations pursuant to the Guarantee and Collateral Agreement; (viii) if such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinancedsenior subordinated Indebtedness, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated expressly subordinate to the payment in full of all of the Obligations in right of payment, or (y) if not contractually subordinated on terms and conditions reasonably satisfactory to the Obligations in right of paymentAdministrative Agent and (ix) the Borrower shall have complied with Section 8.01(n);
(j) Permitted Refinancing Indebtedness and any guarantees thereof, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement proceeds of such Indebtedness is which shall be used concurrently with the incurrence thereof to refinance any outstanding Permitted Senior Notes permitted under Section 6.04(b9.02(i) (other than Section 6.04(b)(i)or to refinance any outstanding Refinanced Indebtedness, as the case may be; and
(vik) in the case other unsecured Indebtedness of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary $15,000,000 in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, aggregate at any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a Loanone time outstanding.
Appears in 2 contracts
Sources: Credit Agreement (Riviera Resources, Inc.), Credit Agreement (Riviera Resources, LLC)
Indebtedness. (a) The Borrower Company will not permit any Subsidiary to be liable for the Senior Notes or any other Material Indebtedness (other than (x) Indebtedness referred to in clauses (i) and (ii) of paragraph (b) below, (y) Guarantees by Foreign Subsidiaries of Material Indebtedness of other Foreign Subsidiaries and (z) Material Indebtedness of Foreign Subsidiaries that is not Guaranteed by any Domestic Subsidiary), whether as a primary obligor or under any Guarantee, unless such Subsidiary (i) shall be a party to and a Guarantor under the Guarantee Agreement or (ii) if the Guarantee Agreement shall have been terminated as provided in Section 11.16, shall have executed and delivered a Guarantee of the Obligations satisfactory in form and substance to the Administrative Agent. The Company will not permit any such Material Indebtedness to contain any provision requiring, contingently or otherwise, that any Subsidiary guarantee any obligations thereunder (other than any provision requiring Guarantees by Foreign Subsidiaries of Material Indebtedness of other Foreign Subsidiaries) unless this Agreement shall have been amended to incorporate such provision, mutatis mutandis, into the appropriate Article herein.
(b) The Company will not, nor shall it and will not permit any of its Restricted Subsidiaries Subsidiary to, directly enter into any inventory securitization transaction, or indirectly, create, incur, assume or otherwise become or remain liable with respect permit to any Indebtedness, except:
(a) the Obligations (including any Additional Term Loans);
(b) 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 exist any Indebtedness of any Loan Party owed to any Restricted an Excluded Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note);
(c) [reserved];
(d) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
(f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(h) guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;than:
(i) Indebtedness of under the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition Existing Securitization or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial CovenantsSecuritization;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to 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 Indebtedness of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one yearExcluded Subsidiaries under this Agreement; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case Indebtedness of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Excluded Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (ySecuritization Entity) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from exceeding $500,000,000 at any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a Loantime outstanding.
Appears in 2 contracts
Sources: Credit Agreement (Amerisourcebergen Corp), Credit Agreement (Amerisourcebergen Corp)
Indebtedness. The Borrower shall will not, nor shall it and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create, incur, assume or otherwise become or remain liable with respect permit to exist any Indebtedness, except:
(a) the Obligations (including any Additional Term Loans)Obligations;
(b) Indebtedness of incurred to finance the Borrower to any Restricted Subsidiary and/or acquisition, construction or improvement of any Restricted Subsidiary to the Borrower and/or any other Restricted Subsidiary; providedfixed or capital assets, that including Capital Lease Obligations and any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note);
(c) [reserved];
(d) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred assumed in connection with the acquisition of any Disposition permitted hereunder, such assets or secured by a Lien on any acquisition permitted hereunder or consummated such assets prior to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stockacquisition thereof, and Indebtedness arising from guaranteesextensions, letters renewals and replacements of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of that do not increase the Borrower and/or any Restricted Subsidiary outstanding principal amount thereof; provided that (i) pursuant such Indebtedness is incurred prior to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return or within ninety (90) days after such acquisition or the completion of money bonds such construction or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
(f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of businessimprovement, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(h) guarantees by the Borrower and/or any Restricted Subsidiary aggregate principal amount of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;
clause (ib) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount shall not to exceed the greater of (A) $33,000,000 200,000,000 and 0.75(B) 2.00% of Consolidated Total Assets Net Tangible Assets, determined on a pro forma basis as of the last day of the most recently ended Test Period, so long as fiscal quarter of the Borrower is in pro forma compliance for which financial statements were required to be delivered pursuant to Section 5.01, at any time outstanding and (iii) with respect to Indebtedness incurred by the Financial Covenants;
Borrower pursuant to this clause (n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that b), (ix) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder shall be of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under type described in clauses (a), (ib), (m), c) or (n), (r), (u) and (zh) of this Section 6.01 (the definition of “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” or, 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 if solely in connection with any Capital Lease Obligations, such Indebtedness shall be of the relevant refinancingtype described in clauses (d) or (e) of the definition of “Indebtedness” (and for the avoidance of doubt, refunding or replacement and no Guarantee by the related refinancing transaction, (B) an amount equal to Borrower of Indebtedness of any existing commitments unutilized thereunder and (C) additional amounts other Person shall be permitted to be incurred pursuant to this Section 6.01 (provided that (x) any additional Indebtedness referenced in under 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 permittedb)) and (y) if such additional Indebtedness is secured, the Lien securing aggregate principal amount of all such Indebtedness satisfies the applicable requirements of Section 6.02),shall not exceed $50,000,000 at any time outstanding;
(iic) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) Indebtedness Incurrence Conditions shall be satisfied at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any of such Indebtedness, Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness Subsidiary of the Borrower and/or any Restricted Subsidiary in an incurred pursuant to Permitted Receivables Facilities; provided that the aggregate outstanding principal amount of Attributable Receivables Indebtedness thereunder shall not to exceed 200% the greater of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries $500,000,000 and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.25.00% of Consolidated Total Assets Net Tangible Assets, determined on a pro forma basis as of the last day of the most recently ended Test Period, plus (ii) at the election fiscal quarter of the Borrower (and without duplication), any amount reallocated for which financial statements were required to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate be delivered pursuant to Section 6.04(a)(x) 5.01, at any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)))time outstanding;
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aad) Indebtedness existing on the date hereof and set forth on Schedule 6.01 and extensions, renewals, refinanced and replacements of any such Indebtedness, provided that any such extended, renewed, refinanced or replaced Indebtedness shall not increase the principal amount (including obligations and, in the case of Indebtedness consisting, in whole or in part, of unused revolving commitments, the applicable amount thereof) except by an amount equal to unpaid accrued interest and premium thereon plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with such modification, refinancing, refunding, renewal or extension and by an amount equal to any existing commitments unutilized thereunder, any Liens securing such Indebtedness shall not be extended to any additional property of the Borrower or any Subsidiary, none of the Borrower or any Subsidiary that is not originally obligated with respect to repayment of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments the original Indebtedness is required to become obligated with respect to such Indebtedness, such Indebtedness shall not shorten the average weighted maturity of the original Indebtedness and if the original Indebtedness was subordinated in right of payment to the Obligations, then the terms and conditions of such Indebtedness must include subordination terms and conditions that are at least as favorable to the Administrative Agent and the Lenders as those that were applicable to the original Indebtedness;
(e) incurred by so long as the Indebtedness Incurrence Conditions shall be satisfied at the time of incurrence of such Indebtedness, additional Indebtedness of the Borrower and/or any Restricted Subsidiary in respect and its Subsidiaries; and
(f) letters of workers compensation claimscredit, unemployment insurance (including premiums related thereto)letters of guaranty, bankers’ acceptances, surety bonds and other types of social security, pension similar bond obligations, vacation pay, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness ; provided that with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) any such Indebtedness incurred in any transaction or series of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations related transactions having an aggregate value in excess of $50,000,000 the Borrower, any Restricted Subsidiary that is a LoanIndebtedness Incurrence Conditions shall be satisfied at the time of incurrence of such Indebtedness.
Appears in 2 contracts
Sources: Credit Agreement (Ugi Corp /Pa/), Credit Agreement (Ugi Corp /Pa/)
Indebtedness. The Lead Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or otherwise become or remain liable with respect to any Indebtedness, except:
(a) the Secured Obligations (including any Additional Term LoansRevolving Loans and/or Additional Revolving Commitments);
(b) Indebtedness of the Lead Borrower to any Restricted Subsidiary and/or of any Restricted Subsidiary to the Lead Borrower and/or or any other Restricted Subsidiary; providedprovided 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 Investment by Section 6.06; provided further that any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note)Party;
(c) [reservedReserved];
(di) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stock, and (ii) Indebtedness arising from guaranteesguaranties, letters of credit, bank guaranteesguaranties, surety bonds, performance bonds or similar instruments securing the performance of the Lead Borrower or any such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of the Lead Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and business, (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing itemsitems 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, 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 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 Lead Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets goods or Real Estate Investments services or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(h) guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (x) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a Loan
Appears in 2 contracts
Sources: Abl Credit Agreement (Hayward Holdings, Inc.), Abl Credit Agreement (Hayward Holdings, Inc.)
Indebtedness. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, directly 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;
(a) (i) the Obligations and (including ii) any Additional Term LoansIndebtedness incurred to refinance, extend, renew or replace the Obligations; provided that the Refinancing Debt Requirements are satisfied (such Indebtedness, the “Credit Agreement Refinancing Debt”);
(b) Indebtedness of the Borrower to any Restricted Subsidiary and/or of any Restricted Subsidiary owed to the Borrower and/or or to any other Restricted Subsidiary, or of the Borrower owed to any Subsidiary; provided, that (i) all such Indebtedness shall be evidenced by the Intercompany Note, and, if owed to a Loan Party, shall be subject to a First Priority Lien pursuant to the Pledge and Security Agreement, (ii) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the Intercompany Note, (iii) any payment by any such Subsidiary Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness of any Loan Party owed by such Subsidiary to the Borrower or to any Restricted Subsidiary that of its Subsidiaries for whose benefit such payment is not a Loan Party must be expressly subordinated to the Obligations of made and (iv) such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to Indebtedness is permitted as an Intercompany Note)Investment under Section 6.06;
(c) [reserved]unsecured Indebtedness that (i) matures after, and does not require any scheduled amortization, mandatory redemption, sinking fund obligation or other scheduled payments of principal prior to, the date which is six months after the Term Loan Maturity Date (it being understood that such Indebtedness may have mandatory prepayment, repurchase or redemptions provisions satisfying the requirement of clause (ii) hereof), (ii) has terms and conditions (other than interest rate, redemption premiums and subordination terms), taken as a whole, that are not materially less favorable to the Borrower than the terms and conditions customary at the time for high-yield senior unsecured debt securities issued in a public offering, and (iii) does not require a Subsidiary of Holdings other than the Borrower and the Subsidiary Guarantors to be an obligor with respect to such Indebtedness; provided, that (1) 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) Holdings shall be in compliance with the Senior Unsecured Incurrence Test (on a pro forma basis);
(d) Indebtedness incurred by Holdings or any of its Subsidiaries arising from any agreement agreements providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof from guaranties or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, bonds or performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any such agreementbusiness, assets or Subsidiary of Holdings or any of its Subsidiaries;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) which may be deemed to exist pursuant to tendersany guaranties, statutory obligations, bids, leases, governmental contracts, trade contractsperformance, surety, staystatutory, customs, appeal, performance and/or return of money bonds appeal or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
(f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(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, real property lessors and licensees of the Borrower and its Subsidiaries;
(h) guarantees guaranties by the Borrower and/or any Restricted Subsidiary of Indebtedness of a Subsidiary Guarantor or other obligations guaranties by a Subsidiary Guarantor of Indebtedness of the Borrower or any Restricted another Subsidiary Guarantor with respect respect, in each case, to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01; 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 6.01 or other obligations and any Permitted Refinancing thereof;
(j) Indebtedness incurred during any Fiscal Year in an amount not prohibited by this Agreement; provided that to exceed $25,000,000 in the case aggregate which is secured by purchase money Liens or incurred with respect to Capital Leases and purchase money Indebtedness; provided, that any such Indebtedness incurred with respect to purchase money (i) shall be secured only by the assetassets acquired in connection with the incurrence of any Guarantee by any Loan Party such Indebtedness, and (ii) shall constitute not less than 75.0% of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06aggregate 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 the Borrower and/or or any Restricted of its Subsidiaries, in each case after the ClosingRestatement Effective Date as the result of a Permitted Acquisition, provided, that (x) such Indebtedness existed at the time such Person became a Subsidiary existing, or pursuant to commitments existing, on at the Closing Date 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 of its Subsidiaries and (ii) any Permitted Refinancing thereof; provided, that (1) the direct and contingent obligors with respect to such Indebtedness are not changed and (2) such Indebtedness shall not be secured by any assets other than the extent in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) assets securing the Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentivebeing renewed, supply, license extended or similar agreements entered into in the ordinary course of businessrefinanced;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained type described in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (x) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substancexi) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary definition thereof incurred 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 herebynot for speculation purposes;
(um) other unsecured Indebtedness of the Borrower and/or any Restricted Subsidiary and its Subsidiaries in an aggregate outstanding principal amount not to exceed the sum of $50,000,000 at any time $50,000,000; and
(i) Indebtedness under the greater Second Lien Credit Agreement not to exceed the principal amount of $140,000,000 180,000,000 plus accrued interest, provided that the net cash proceeds thereof are used to refinance the Senior Notes and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Periodpay related fee and expenses, plus (ii) at the election of the Borrower Second Lien Incremental Indebtedness and (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(xiii) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Permitted Refinancing Indebtedness (including obligations in respect of letters of creditsuch Indebtedness in clauses (i) and (ii), bank guarantiesand, surety bondsin each case, performance bonds or similar instruments with respect to such Indebtedness) incurred guarantees thereof, by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a LoanGuarantors.
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (RadNet, Inc.), Credit and Guaranty Agreement (RadNet, Inc.)
Indebtedness. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or otherwise become or remain liable Except with respect to any Indebtedness, except:
(a) the Obligations (including any Additional Term Loans);
(b) incurrence of Indebtedness of under the Borrower to any Restricted Subsidiary and/or of any Restricted Subsidiary to the Borrower and/or any other Restricted Subsidiary; provided, that any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note);
(c) [reserved];
(d) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
(f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees Unisource Credit Facility in the ordinary course of business, UWWH shall not, and shall not permit any of its Subsidiaries to:
(iii) incur any Indebtedness incurred in the ordinary course for borrowed money or guarantee or otherwise become contingently liable for any such Indebtedness or issue or sell any debt securities or warrants or rights to acquire any debt securities of business in respect UWWH or any of obligations its Subsidiaries or guarantee any debt securities of the Borrower and/or others or enter into any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments material lease other than in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into operating leases in the ordinary course of business;
(hii) guarantees by the Borrower and/or issue any Restricted Subsidiary of Indebtedness debt securities or other obligations of the Borrower assume, guarantee or any Restricted Subsidiary with respect to Indebtedness endorse, or 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 as an accommodation become responsible for, the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06Person for borrowed money or otherwise;
(iiii) Indebtedness make any loans, advances, capital contributions to or investments in any other Person except (A) loans or advances by UWWH or any of UWWH’s wholly-owned Subsidiaries to it or any of its wholly-owned Subsidiaries, (B) investments or capital contributions in any of UWWH’s wholly-owned Subsidiaries, (C) as required by binding Contracts in effect as of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent date hereof set forth in excess of $6,000,000 described on Schedule 6.01;
(jSection 8.2(g) [reserved];
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license UWWH Disclosure Schedules or similar agreements entered into (D) in the ordinary course of business; provided, that the aggregate amount of such loans, advances, capital contributions to or investments in any other Person made in reliance on this clause (D) shall not exceed $100,000;
(liv) Indebtedness authorize material capital expenditures or purchases 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 fixed assets or inventory in connection with customer financing arrangements other than from third parties in the ordinary course of business;; or
(mv) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in incur Liabilities secured by an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the Encumbrance on its assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to 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 ordinary course of business; which, in the case of Refinancing Indebtedness with respect to clauses (i), (mii), (niii), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereofiv) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) 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 above, would obligate the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term LoansSurviving Corporation or its Subsidiaries to pay any amounts, (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 assume any obligations to be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined performed by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded Surviving Corporation or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must eitherits Subsidiaries, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only or after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a LoanEffective Time.
Appears in 2 contracts
Sources: Merger Agreement (Xpedx Holding Co), Merger Agreement (Xpedx Holding Co)
Indebtedness. The Borrower shall Parent will not, nor shall it and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create, incur, assume or otherwise become or remain liable with respect permit to exist any Indebtedness, except:
(a) the Obligations (including any Additional Term Loans)Finance Obligations;
(b) Indebtedness existing on the date hereof and set forth in Schedule 7.01 and any Permitted Refinancing Indebtedness in respect thereof;
(c) Indebtedness of the Borrower Parent to any Restricted Subsidiary and/or and of any Restricted Subsidiary to the Borrower and/or any other Restricted Subsidiary; provided, that any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note);
(c) [reserved];
(d) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof Parent or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
(f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(h) guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this AgreementSubsidiary; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (x) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under to any Asset Financing Facility or CRE Financing Loan Party shall be subject to, and shall comply with, clause (and any guarantees and co-borrower obligations ii) of the Borrower, proviso set forth in Section 7.04(d);
(d) (i) Guarantees by the U.S. Borrower of the USAO Settlement Obligations and (ii) Guarantees by Parent or any Restricted Subsidiary of Indebtedness or other obligations of Parent or any Subsidiary; provided that, in the case of clause (ii), the aggregate amount of Indebtedness and other payment obligations (other than in respect of any overdrafts and related liabilities arising in the ordinary course of business from treasury, depository and cash management services or in connection with any automated clearing-house transfer of funds) of Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be permitted under Section 7.04(d) or (w);
(e) Indebtedness of Parent or any Restricted Subsidiary incurred to finance the acquisition, construction, repair or improvement of any fixed or capital assets, including Capital Lease Obligations, Synthetic Lease Obligations and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a LoanLien on any such assets prior to the acquisition thereof, and any Permitted Refinancing Indebtedness in respect thereof; provided that (i) such Indebtedness (but not any Permitted Refinancing Indebtedness in respect thereof) is incurred prior to or within 270 days after such acquisition or the completion of such construction, repair or improvement and (ii) the aggregate principal amount of Indebtedness permitted by this clause (e) shall not exceed, on a pro forma basis determined in accordance with Section 1.03(c), immediately after giving effect to the issuance or incurrence of such Indebtedness the greater of (x) $25,000,000 and (y) 10% of Consolidated EBITDA for the most recently completed Test Period, at any time outstanding;
Appears in 2 contracts
Sources: Credit Agreement (Jazz Pharmaceuticals PLC), Credit Agreement (Jazz Pharmaceuticals PLC)
Indebtedness. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly, createCreate, incur, assume or otherwise become or remain liable with respect suffer to exist any Indebtedness, except:
(a) the Obligations (including any Additional Term Loans);
(b) 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 any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note);
(c) [reserved];
(d) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligationsor otherwise) incurred in connection with existing or arising under any Disposition permitted hereunderSwap Contract, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary provided that (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds such obligations are (or other similar obligations incurred were) entered into by such Person in the ordinary course of business and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(b) Indebtedness owed by a Loan Party to any other Loan Party which Indebtedness (x) is hereby subordinated to the prior indefeasible payment in full in cash of the Obligations, (y) is represented by an Instrument in form satisfactory to the Administrative Agent and delivered to the Administrative Agent pursuant to the Security Agreement; and (z) is otherwise permitted under the provisions of Section 7.03;
(c) Indebtedness under the Loan Documents;
(d) Indebtedness outstanding on the date hereof and listed on Schedule 7.02; provided that (i) the Loan Parties may only make regularly scheduled payments of principal and interest in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any such Indebtedness in accordance with the terms of the foregoing itemsagreement or instrument evidencing or giving rise to such Indebtedness as in effect on the Closing Date, (ii) the Loan Parties shall not, directly or indirectly, (A) amend, modify, alter or change the terms of such Indebtedness or any agreement, document or instrument related thereto as in effect on the Closing Date except that the Loan Parties may, after prior written notice to the Administrative Agent on behalf of the Secured Parties, amend, modify, alter or change the terms thereof so as to extend the maturity thereof, or defer the timing of any payments in respect thereof, or to forgive or cancel any portion of such Indebtedness (other than pursuant to payments thereof), or to reduce the interest rate or any fees in connection therewith, or (B) redeem, retire, defease, purchase or otherwise acquire such Indebtedness, or set aside or otherwise deposit or invest any sums for such purpose, and (iii) the Loan Parties shall furnish to the Administrative Agent all notices or demands in connection with such Indebtedness either received by the any Loan Party or on its behalf, promptly after the receipt thereof, or sent by any Loan Party or on its behalf, concurrently with the sending thereof, as the case may be;
(e) Guarantees of any Guarantor in respect of Indebtedness otherwise permitted hereunder of the Borrower;
(f) purchase money Indebtedness (including Capitalized Leases) arising after the Closing Date to the extent secured by purchase money security interests in Equipment (including Capitalized Leases) and purchase money mortgages on Real Property not to exceed $25,000,000 in the aggregate at any time outstanding (excluding such Indebtedness outstanding on the Closing Date) so long as such security interests and mortgages do not apply to any property of the Borrower or its Subsidiaries other than the Equipment or Real Property so acquired, and the Indebtedness secured thereby does not exceed the cost of the Equipment or Real Property so acquired, as the case may be;
(g) Indebtedness of the Borrower and/or any Restricted Subsidiary Loan Parties in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of creditperformance bonds, bankers’ acceptances, bank guaranties workers’ compensation claims, surety or appeal bonds, payment obligations in connection with self-insurance or similar instruments supporting trade payablesobligations, warehouse receipts or similar facilities entered into and in the ordinary course of business;
(h) guarantees Indebtedness arising from the honoring by the Borrower and/or any Restricted Subsidiary of Indebtedness a bank or other obligations financial institution of the Borrower a check, draft 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 similar instrument inadvertently (except 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;
(idaylight overdrafts) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five Business Days of incurrence;
(i) other unsecured Indebtedness of the Loan Parties in an aggregate principal amount not to exceed $20,000,000 at any time outstanding;
(j) so long as no Default exists immediately prior to or after giving effect to the incurrence thereof, Subordinated Indebtedness, to the extent that the Net Cash Proceeds of such Subordinated Indebtedness are used to pay, substantially contemporaneously with the incurrence thereof, consideration for one or more Permitted Acquisitions, Indebtedness of any Person(s) acquired in such Permitted Acquisition or Permitted Acquisitions or any fees or expenses incurred in connection therewith and any such Permitted Acquisition is made in compliance with the requirements set forth in the definition thereof;
(k) as to the Target Company and its Subsidiaries, and any other Canadian Subsidiaries of the Borrower to the extent they may become parties to the Canadian Target Debt Agreement, Canadian Target Debt in an aggregate principal amount at any time outstanding of not more than Cdn $245 million;
(l) Indebtedness so long as no Default or Event of Default exists immediately prior to or after giving effect to the incurrence thereof, the Senior High Yield Debt, provided that prior to or upon the incurrence of the Initial Senior High Yield Debt, the Borrower and/or any Restricted Subsidiary consisting pays off in full the then outstanding Canadian Target Debt with the proceeds 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 businessInitial Senior High Yield Debt;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as (i) no Default or Event of Default exists immediately prior to or after giving effect to the incurrence thereof, and (ii) after giving effect to the incurrence thereof on a pro forma basis, the Borrower’s Consolidated Fixed Charge Coverage Ratio is greater than 3.00:1.00, the Borrower is in pro forma compliance with the Financial Covenantsand Guarantors may incur Other Secured Debt;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that so long as (i) such Indebtedness (A) existed at no Default or Event of Default exists immediately prior to or after giving effect to the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) incurrence thereof, and (ii) after giving effect to the incurrence thereof on a pro forma basis, the Borrower’s Consolidated Fixed Charge Coverage Ratio is greater than 2.00:1.00, the Borrower is in pro forma compliance with and Guarantors may incur other unsecured Indebtedness, and the Financial Covenants;Borrower and its Subsidiaries may incur Acquired Indebtedness; and
(o) Indebtedness consisting so long as no Default or Event of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (x) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal Default exists immediately prior to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without after giving effect to any Prepayments the incurrence thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Canadian Subsidiaries may incur Other Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Canadian Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a Loan.
Appears in 2 contracts
Sources: Credit Agreement (Clean Harbors Inc), Credit Agreement (Clean Harbors Inc)
Indebtedness. (a) The Borrower shall Credit Parties will not, nor shall it and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create, incur, assume or otherwise become or remain liable with respect permit to exist any Indebtedness, except:
(ai) the Obligations (including any Additional Term Loans)Obligations;
(bii) Indebtedness of any Subsidiary to the Borrower or any other Subsidiary, or of the Borrower to any Restricted Subsidiary and/or of any Restricted Subsidiary to the Borrower and/or any other Restricted Subsidiary; provided, provided that any (A) such Indebtedness of any Loan Party owed shall not have been transferred to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note);
(c) [reserved];
(d) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof or any Person other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of than the Borrower or any Subsidiary, (B) such Restricted Subsidiary Indebtedness shall be evidenced by the Intercompany Note, and, if owing to a Credit Party, shall be subject to a First Priority Lien pursuant to the Pledge and Security Agreement, (C) such Indebtedness shall be unsecured and, if owed by a Credit Party, subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the Intercompany Note, (D) any payment by any Subsidiary Guarantor under the Guarantee of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owing by such agreementSubsidiary Guarantor to the Borrower or any other Subsidiary for whose benefit such payment is made and (E) such Indebtedness shall be permitted as an Investment under Section 6.6;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
(f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters netting services, overdraft protections and otherwise arising from treasury, depositary and cash management services or in connection with any automated clearing-house transfers of creditfunds;
(iv) Guarantees incurred in compliance with Section 6.6;
(v) Guarantees by one or more Credit Parties of Indebtedness owed to Persons other than the Borrower or any Subsidiary and permitted under this Section (other than clause (vi) or (viii) hereof);
(vi) Indebtedness set forth on Schedule 6.1 and Refinancing Indebtedness in respect thereof;
(vii) Indebtedness consisting of (A) Capital Lease Obligations (other than Capital Lease Obligations in respect of leases of Real Estate Assets) and purchase money Indebtedness incurred by the Borrower or any Subsidiary to finance the acquisition, bankers’ acceptancesconstruction or improvement of any fixed or capital assets, bank guaranties or similar instruments supporting trade payablesany Indebtedness assumed in connection with the acquisition of any such assets and Refinancing Indebtedness in respect of the foregoing, warehouse receipts or similar facilities entered into in an aggregate principal amount not in excess of $5,000,000 at any one time outstanding; and (B) Capital Lease Obligations in respect of leases of Real Estate Assets acquired for use in the ordinary course of business;
(h) guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that all payments in the case respect of Indebtedness incurred under this clause (vii)(B) shall not exceed $5,000,000 in any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment Fiscal Year; provided further that such Indebtedness under this clause (vii) is permitted under Section 6.06;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existingincurred prior to, on the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder within 180 days after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder completion of the Borrower construction or any current or former director, officer, employee, member of management, manager or consultant improvement of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) related assets and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount cost of acquiring, constructing or improving such fixed or capital assets;
(viii) Indebtedness of any Person that becomes a Subsidiary (or of any Person not previously a Subsidiary that is merged or consolidated with or into a Subsidiary in a transaction permitted hereunder) after the date hereof, or Indebtedness being refinanced, refunded or replaced, except of any Person that is assumed 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 any Subsidiary in connection with the relevant refinancingan acquisition of assets by such Subsidiary in a Permitted Acquisition, 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 in respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one yearthereof; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness (other than any such Refinancing Indebtedness, if secured, is secured only by Permitted Liens ) exists at the time such Person becomes a Subsidiary (or is so merged or consolidated) or such assets are acquired and is not created in contemplation of or in connection with such refinancing, refunding Person becoming a Subsidiary (or replacement such merger or consolidation) or such assets being acquired (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing provisions of this clause (viii) will not prohibit any such Indebtedness were contractually subordinated at time to be increased through the utilization of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) available baskets or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or exceptions set forth in, or otherwise subject to, an Acceptable Intercreditor Agreementin other clauses of this Section 6.1), (B) the aggregate principal amount of all such Indebtedness is incurred permitted 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, this clause (viii) shall not exceed $25,000,000 at any time outstanding and (C) if neither 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) Borrower nor any Subsidiary (other than Section 6.04(b)(i), and
(visuch Person or the Subsidiary with which such Person is merged or consolidated or that so assumes such Person’s Indebtedness) in shall Guarantee or otherwise become liable for the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(rix) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds guaranties or similar instruments with respect to such Indebtedness) incurred by the Borrower and/or any Restricted Subsidiary in respect of supporting performance, surety, statutory, appeal, bid or similar obligations, 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 obligations in respect of property, casualty or liability insurance or self-insurance or other Indebtedness with premiums (provided that any reimbursement obligations in respect to reimbursement-type obligations regarding workers compensation claimsthereof are reimbursed within 30 days following the incurrence thereof), in each case incurred in the ordinary course of business;
(bbx) unsecured Indebtedness consisting of the financing of insurance premiums with the providers of such insurance or their Affiliates;
(xi) to the extent constituting Indebtedness, judgments, decrees, attachments or awards not constituting an Event of Default under Section 8.1(h);
(xii) Indebtedness of Foreign Subsidiaries; provided that the aggregate principal amount of such Indebtedness may not exceed $2,500,000 at any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing time outstanding; and
(and any guarantees and co-borrower obligations xiii) other unsecured Indebtedness of the BorrowerBorrower and the Domestic Subsidiaries; provided that the aggregate principal amount of such Indebtedness may not exceed $2,500,000 at any time outstanding.
(b) Notwithstanding anything herein to the contrary, the Borrower will not issue any Restricted Disqualified Equity Interests, no Subsidiary that is a Loanwill, and the Borrower will not permit any Subsidiary to, issue any preferred stock or other preferred Equity Interests.
Appears in 2 contracts
Sources: Credit and Guarantee Agreement (Telx Group, Inc.), Credit and Guarantee Agreement (Telx Group, Inc.)
Indebtedness. The Borrower Company shall not, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, exceptexcept the following Indebtedness:
(a) the Secured Obligations (including any Additional Term Loans)other than in respect of Hedging Contracts) and Guaranty Obligations in respect thereto;
(bi) Indebtedness existing on the date of this Agreement and disclosed on Schedule 8.1 (Existing Indebtedness), (ii) Indebtedness under the New Subordinated Notes in an aggregate principal amount not to exceed $325,000,000 and (iii) any Permitted Refinancing thereof;
(c) Permitted Subordinated Indebtedness; provided, however, that (i) both immediately prior to and after giving effect thereto, no Default or Event of Default shall exist or result therefrom and (ii) the Company and its Subsidiaries will be in Pro Forma Compliance with Article V (Financial Covenant) after giving effect to the incurrence or issuance of such Indebtedness;
(d) Guaranty Obligations incurred by the Company or any of its Subsidiaries in respect of Indebtedness of the Company or any Subsidiary that is otherwise permitted by this Section 8.1 (other than clause (a) above); provided, however, that (i) none of the Company and its Subsidiaries shall be permitted to Guarantee any Indebtedness arising under any Indenture (or any Permitted Refinancing thereof) unless such Subsidiary shall have also Guaranteed the Obligations substantially on the terms set forth in the Guaranty and (ii) if the Indebtedness being Guaranteed is subordinated to the Obligations, then the Guaranty Obligations with respect to such Indebtedness shall be subordinated to the Guaranty Obligations with respect to the Obligations on terms at least as favorable to the Lenders as those contained in the subordination provisions of such Indebtedness;
(e) Indebtedness of the Borrower (i) any Domestic Loan Party owing to any Restricted Subsidiary and/or of other Domestic Loan Party, (ii) any Restricted Subsidiary to the Borrower and/or any other Restricted Subsidiary; provided, that any Indebtedness of any Loan Party owed to any Restricted Domestic Subsidiary that is not a Loan Party owing to (A) any other Domestic Subsidiary that is not a Loan Party or (B) the Company or a Loan Party in respect of an Investment permitted under Section 8.3(c) (Investments), (iii) any Domestic Loan Party owing to any Foreign Subsidiary, (iv) any Foreign Subsidiary owing to any other Foreign Subsidiary and (v) any Foreign Subsidiary or any Subsidiary that is not a Loan Party owing to any Domestic Loan Party in respect of an Investment permitted under Section 8.3(c) (Investments); provided, however, that all such Indebtedness of any Loan Party owing to any Subsidiary that is not a Loan Party (or to any Mexican Borrower) must be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note);
(c) [reserved];
(d) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
(f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programsObligations;
(i) guarantees by Capital Lease Obligations and purchase money Indebtedness (including Indebtedness in respect of mortgage, industrial revenue bond, industrial development bond and similar financings) to finance the Borrower and/or any Restricted Subsidiary purchase, repair or improvement of fixed or capital assets and incurred concurrently with or within 270 days of the obligations purchase, repair or improvement of suppliersthe property subject to the Liens permitted under Section 8.2(i) (Liens, customers Etc.) (including permitted sale-leaseback transactions) and licensees in the ordinary course of business, (ii) any Permitted Refinancing thereof;
(g) (i) Indebtedness incurred denominated in Pesos of Foreign Subsidiaries domiciled in Mexico, in an aggregate principal amount at any time outstanding for all such Indebtedness not to exceed $30,000,000, to the ordinary course extent that the Net Cash Proceeds of business in respect of obligations of any such Indebtedness are applied to prepay the Borrower and/or any Restricted Subsidiary Loans to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services extent required pursuant to Section 2.9 (Mandatory Prepayments) and (iiiii) any Permitted Refinancing thereof;
(h) Indebtedness in respect of letters Interest Rate Contracts and other Hedging Contracts permitted under Section 8.15 (No Speculative Transactions);
(i) (i) Indebtedness of creditthe Company and its Subsidiaries (A) assumed in connection with any Permitted Acquisition; provided, bankers’ acceptanceshowever, bank guaranties that such Indebtedness is not incurred in contemplation of such Permitted Acquisition or similar instruments supporting trade payables(B) owed to the seller of any property acquired in a Permitted Acquisition on an unsecured subordinated basis, warehouse receipts which subordination shall be on terms reasonably satisfactory to the Administrative Agent, in each case, so long as (1) both immediately prior to and after giving effect thereto, no Default or similar facilities entered into Event of Default shall exist or result therefrom and (2) the Company and its Subsidiaries will be in Pro Forma Compliance with Article V (Financial Covenant) after giving effect to such Permitted Acquisition and the incurrence or issuance of such Indebtedness and (ii) any Permitted Refinancing thereof;
(j) Indebtedness representing deferred compensation to employees of the Company and its Subsidiaries incurred in the ordinary course of business;
(hk) guarantees Indebtedness consisting of promissory notes issued by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower Company or any of its Subsidiaries to current or former officers, directors, employees or consultants, their respective estates, spouses or former spouses to finance the purchase or redemption of Stock or Stock Equivalents of Holdings or the Company, or to finance a Restricted Subsidiary Payment 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 SARs, 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 andeach case, to the extent in excess of $6,000,000 described on Schedule 6.01;
permitted by Section 8.5 (j) [reserved];
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of businessPayments);
(l) Indebtedness incurred by the Company or its Subsidiaries in a Permitted Acquisition or Asset Sale in respect of agreements providing for indemnification, the adjustment of the Borrower and/or any Restricted Subsidiary purchase price or similar adjustments;
(m) Indebtedness consisting of obligations of the Company or its Subsidiaries under deferred employee compensation or other similar arrangements incurred by such Person in connection with the Transactions and Permitted Acquisitions;
(n) Cash Management Obligations and other Indebtedness in respect of netting services, overdraft protections and similar arrangements, in each case, in connection with Deposit Accounts;
(o) Indebtedness consisting of (i) the financing of insurance premiums, premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or business;
(iiip) Indebtedness incurred by the Company or any of its Subsidiaries constituting reimbursement obligations with respect to reacquire assets or inventory in connection with customer financing arrangements letters of credit issued in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (x) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood thatincluding, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit letters of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations credit in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower and/or any Restricted Subsidiary in respect of workers workers’ compensation claims, unemployment insurance (including premiums related thereto), other types of social security, pension obligations, vacation pay, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type reimbursement or similar obligations regarding workers workers’ compensation claims; provided, however, that, upon the drawing of such letters of credit or the incurrence of such Indebtedness, such obligations shall be reimbursed within 30 days following such drawing or incurrence;
(bbq) obligations in respect of performance and surety bonds and performance and completion guarantees provided by the Company or any of its Subsidiaries, or obligations in respect of letters of credit related thereto, in each case, in the ordinary course of business or consistent with past practice;
(r) in the case of any Foreign Subsidiary, Indebtedness in an aggregate principal amount not to exceed $40,000,000 at any time outstanding (i) to the extent such Indebtedness is utilized within 90 days of the incurrence thereof to finance a Permitted Acquisition, and (ii) incurred in connection with any substantially contemporaneous Permitted Refinancing of such Indebtedness;
(s) Indebtedness not otherwise permitted under this Section 8.1; provided, however, that, (i) both immediately prior to and after giving effect thereto, no Default or Event of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility Default shall exist or CRE Financing result therefrom, (ii) the Company and any guarantees its Subsidiaries will be in Pro Forma Compliance with Article V (Financial Covenant) after giving effect to the incurrence or issuance of such Indebtedness and co-borrower obligations (iii) as of the Borrowerdate any such Indebtedness is Incurred, any Restricted Subsidiary that is a Loanafter giving Pro Forma Effect to such Indebtedness, (A) the Company’s Annualized EBITDA Ratio for the four full Fiscal Quarters immediately preceding such date shall be greater than or equal to 2.0 to 1.0 and (B) the Company’s Senior Leverage Ratio as of such date shall be less than or equal to 3.25 to 1.0; and
(t) all premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (s) above.
Appears in 2 contracts
Sources: Credit Agreement (Marquee Holdings Inc.), Credit Agreement (Amc Entertainment Inc)
Indebtedness. The Borrower shall notNo 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 liable with respect to any Indebtedness, except:
(a) the Obligations (including any Additional Term Loans)Obligations;
(b) Indebtedness of the Borrower any Subsidiary of Holdings to any Restricted other Subsidiary and/or of Holdings; provided, (i) all such Indebtedness shall be evidenced by the Intercompany Note, and, if owed to a Credit Party, shall be subject to a First Priority Lien pursuant to the Security Agreement, (ii) all such Indebtedness shall be unsecured and, if owed by a Credit Party, shall be subordinated in right of payment to the Payment in Full of the Obligations pursuant to the terms of the Intercompany Note, (iii) any payment by any such Guarantor Subsidiary under any guaranty of the Obligations shall result in a pro rata reduction of the amount of any Restricted Indebtedness owed by such Subsidiary to the Borrower and/or or to any other Restricted Subsidiary; provided, that any Credit Parties for whose benefit such payment is made and (iv) such Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to permitted as an Intercompany NoteInvestment under Section 6.6(d);
(c) [reservedReserved];
(d) Indebtedness arising from which may be deemed to exist pursuant to any agreement providing for indemnificationworkers’ compensation claims, adjustment of purchase price self-insurance obligations, guaranties, performance, surety, statutory, appeal bonds or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
(f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(he) guarantees Indebtedness consisting of (i) any treasury or other cash management services, 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;
(f) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of Subsidiaries of Holdings;
(g) guaranties by the Borrower and/or any Restricted of Indebtedness of a Guarantor Subsidiary or guaranties by the Borrower or a Guarantor Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted another Subsidiary with respect respect, in each case, to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement6.1; provided provided, that in (i) no Non-Guarantor Subsidiary shall be permitted to guaranty any Indebtedness of a Credit Party that is unsecured and/or subordinated to the case of any Guarantee by any Loan Party 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 the obligations of any non-Loan PartyRestatement Date described in Schedule 6.1, the related Investment is permitted under Section 6.06and 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 Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existinggreater of (x) $5,000,000 and (y) 15% of Consolidated EBITDA, on a Pro Forma Basis, for the Closing Date andmost 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, to construction, lease or improvement of the extent asset financed and (ii) shall be secured only by the asset acquired, constructed, leased or improved in excess connection with the incurrence of $6,000,000 described on Schedule 6.01such Indebtedness, and any Permitted Refinancing Indebtedness relating thereto;
(j) [reserved](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 of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements 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 Subsidiaries in the ordinary course of business;
(lm) 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 Borrower and/or any Restricted Subsidiary consisting financing of (i) the financing of insurance premiums, premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(op) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary Holdings to any stockholder of the Borrower 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 Membersimmediate family members) to finance the purchase or redemption of Capital Stock of the Borrower Equity Interests permitted by Section 6.04(a6.4(e);
(pq) Indebtedness refinancingincurred by Holdings or any of its Subsidiaries arising from agreements providing for indemnification, refunding adjustment or replacing purchase price or similar obligations, or from guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Indebtedness Subsidiary of Holdings pursuant to such agreements, in connection with Permitted Acquisitions, other Investments permitted under clauses (a)pursuant to Section 6.6 or permitted Dispositions of any business, (i), (m), (n), assets or Subsidiary of Holdings;
(r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums Indebtedness (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 Indebtedness incurred pursuant to this Section 6.01 (6.1(r), the “Ratio Indebtedness”) of Holdings, the Borrower or any Subsidiary; provided that (x1) any additional 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 referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred outstanding in reliance on this clause (Cr) constituting 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 utilization Pro Forma Basis as of the relevant basket Test Period most recently ended on or exception 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 which Section 5.1(a) or (b)) (but excluding from the computation thereof the proceeds of 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 (iIndebtedness), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect unsecured Ratio Indebtedness, the Total Leverage Ratio would not exceed 5.75:1.00 calculated on a Pro Forma Basis after giving effect to Indebtedness permitted under clauses (m)all other transactions consummated in connection therewith, (rB) and (u) 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 Ratio Indebtedness incurred in respect of Indebtedness permitted under clause that is Secured Debt secured by Liens that rank (aor are intended to rank) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing junior to the Liens on the Collateral securing the Initial Term LoansObligations or secured by Liens on assets not constituting Collateral, the Liens securing 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 either constitute Permitted 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 (other than pursuant to Section 6.02(k)) or are subordinated intended to rank) junior to the Liens on the Collateral securing the Initial Term Loans Obligations or secured by Liens on terms assets not materially less favorable constituting Collateral, such Indebtedness (as reasonably determined by the Borrower), taken as a whole, x) does not mature prior to the Lenders than those applicable to date that is 180 days after the Liens securing latest Maturity Date of any Loan outstanding at the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) time such Indebtedness is incurred by 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 obligor or obligors in respect application of any excess cash flow that would otherwise be required to be applied to the prepayments of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted Loans hereunder pursuant to Section 6.012.10(e)) and change of control prepayment provisions and a customary acceleration right after an event of default), (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated in each case prior to the Obligations in right date that is 180 days after the latest Maturity Date of payment, (x) any Loan outstanding at the time such Indebtedness is contractually subordinated to the Obligations in right of payment, or incurred);
(y3) 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) 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 Section 6.04(b)(ipursuant to customary asset sale and change of control offers), ; and
(vi4) in the case of Replacement Notesany Indebtedness described in clause (2) or (3) above, (A) such Indebtedness is pari passu or junior in right of payment shall have covenants and secured by the Collateral on a pari passu or junior basis defaults that are (x) not materially more restrictive with respect to the remaining Obligations hereunderobligors thereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as reasonably determined by the Borrower in good faith), must either, 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 option time of the Borrowerissuance or incurrence thereof, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as reasonably determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a Loanand
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. The Borrower Each Loan Party shall not, nor and shall it not permit any of its Restricted Subsidiaries to, 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 Additional Term Loans)Obligations;
(b) Intercompany Indebtedness, provided that (i) any such Indebtedness owing by a Loan Party to a Person that is not a Loan Party shall be subordinated in right of the Borrower to any Restricted Subsidiary and/or of any Restricted Subsidiary payment to the Borrower and/or Obligations and (ii) the aggregate principal amount of Indebtedness owing by Subsidiaries that are not Loan Parties to Loan Parties shall not exceed, together with the amount of Investment pursuant to Section 6.6(d)(i), the Non-Loan Party Cap;
(c) Indebtedness in respect of cash management obligations, including netting services, automatic clearinghouse arrangements, overdraft protections, employee credit card programs, other similar arrangements and otherwise in connection with deposit accounts, and any other Restricted Subsidiary; provided, that any Indebtedness guarantee obligations of any Loan Party owed and its Subsidiaries in connection therewith, in each case entered into in the Ordinary Course in an Arm’s-Length Transaction;
(d) Indebtedness pursuant to Hedging Agreements not prohibited by Section 6.14;
(e) Capitalized Lease Obligations and purchase money Indebtedness in an aggregate principal amount not to exceed $10,000,000 at any time outstanding;
(f) other unsecured Indebtedness in an aggregate principal amount not exceeding $375,000,000 at any time outstanding so long as (i) at the time of incurrence of such Indebtedness, no Default or Event of Default has occurred and is continuing, (ii) there are no obligors in respect of such Indebtedness other than the Loan Parties, (iii) neither the scheduled maturity date nor the weighted average life to maturity of such Indebtedness is earlier than 90 days after the Scheduled Maturity Date, (iv) such Indebtedness shall be subordinated in right of payment to the Obligations pursuant to a subordination agreement in form and substance acceptable to the Agent (provided that such subordination agreement shall permit the Loan Parties to make regularly scheduled interest payments in respect of such Indebtedness so long as no Default or Event of Default has occurred and is continuing), (v) the all-in-yield as determined by the Agent in its sole discretion applicable to such Indebtedness (whether in the form of interest, margin, original issue discount, upfront fees or otherwise) shall not exceed 15% per annum and (vi) the aggregate amount of interest and amortization payable in cash by the Borrower and its Subsidiaries pursuant to all Indebtedness incurred under this clause (f) on a pro forma basis shall not exceed $25,000,000 per annum;
(g) unsecured promissory notes convertible into common shares of the Borrower in an aggregate principal amount not to exceed $38,000,000 at any time outstanding (the “Convertible Notes”);
(h) Indebtedness of any Person that becomes a Subsidiary of any Loan Party after the date hereof pursuant to a Permitted Acquisition; provided that (i) such Indebtedness exists at the time such Person becomes a Subsidiary and was not incurred in contemplation of or in connection with such Person becoming a Subsidiary, and (ii) no other Loan Party or Subsidiary guarantees such Indebtedness and such Indebtedness is not otherwise recourse to any Restricted other Loan Party or Subsidiary, and (iii) the principal amount of Indebtedness permitted by this Section 6.1(h) shall not exceed in the aggregate $15,000,000 at any time outstanding;
(i) (x) the Guarantee by any Loan Party of the Indebtedness or other obligations of any other Loan Party, to the extent such guarantor could have otherwise incurred such Indebtedness or other obligations directly as the primary obligor in accordance with this Agreement, and (y) the Guarantee by any Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note);
(c) [reserved];
(d) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
(f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(h) guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted other Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations that is not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-a Loan Party, the related Investment is permitted under Section 6.06;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved]the incurrence by the Loan Parties of Indebtedness under an unsecured revolving credit facility in the aggregate principal amount outstanding at any one time not to exceed $25,000,000 on terms that have been consented to in writing by the Required Lenders;
(k) Indebtedness constituting reimbursement obligations with respect to letters of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentivecredit, supply, license bank guarantees or similar agreements entered into performance bonds issued in the ordinary course Ordinary Course in respect of businessworkers’ compensation claims, health, disability or other benefits to employees or former employees or their families or property, casualty or liability insurance or self-insurance or in connection with the maintenance of, or pursuant to the requirements of, environmental permits or licenses from Governmental Authorities;
(l) 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;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (ix) the financing of insurance premiums, premiums or (iiy) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial CovenantsOrdinary Course;
(n) Indebtedness of the Borrower or its Subsidiaries consisting of obligations to make upfront payments, milestone payments, license payments and similar payments pursuant to any Person license agreement in an aggregate amount not to exceed $100,000,000 at any time; provided that becomes a Restricted Subsidiary or the amount of such Indebtedness assumed incurred in connection with an acquisition any single transaction or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was series of related transactions shall not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenantsexceed $50,000,000;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member pursuant to the Scilex Letter of management, manager or consultant of Credit and the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a)Scilex Indenture;
(p) Indebtedness of Subsidiaries that are not Loan Parties in an aggregate principal amount not to exceed $10,000,000 at any time outstanding; provided that no Loan Party shall be an obligor with respect to any such Indebtedness; and
(q) other Indebtedness of the Loan Parties and its Subsidiaries outstanding on the Closing Date and set forth on Schedule 6.1, and any refinancing, refunding renewal or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; extension thereof provided that:
that (i) the principal amount of such Indebtedness does is 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), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens increased at the time of such refinancing, refunding renewal or replacement (it being understood that secured Indebtedness may be refinanced replacement, except by the amount of any accrued but unpaid interest with unsecured Indebtedness), and, respect to the extent the Liens securing such Indebtedness were contractually subordinated at the time of such refinancing to the Liens refinancing, renewal or replacement and any expenses reasonably incurred in connection with such refinancing, renewal or replacement, (ii) any refinancing, renewal or replacement of any subordinated Indebtedness shall be (A) on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on subordination terms not materially less at least as favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders and (B) no more restrictive on the applicable Loan Party and its Subsidiaries than those applicable to the Liens securing the subordinated Indebtedness being refinanced, refunded renewed or replacedextended, taken as a wholeand (iii) the final maturity date and weighted average life to maturity of such refinancing, renewal or set forth in, replacement shall not be prior to or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of shorter than that applicable to the Indebtedness being refinancedrefinanced thereby. Notwithstanding the foregoing, refunded in no event shall any Affiliate of any Loan Party (other than another Loan Party or replaced, except to the extent otherwise wholly-owned Subsidiary thereof providing Indebtedness permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i6.1(b), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) permitted to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding be a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock lender to, or contributions fromotherwise provide any Indebtedness to, the Borrower any Loan Party or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amountor directly, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of indirectly or beneficially hold any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a Loan.
Appears in 2 contracts
Sources: Term Loan Agreement (Sorrento Therapeutics, Inc.), Term Loan Agreement (Sorrento Therapeutics, Inc.)
Indebtedness. The Borrower Borrowers shall not, nor shall it they permit any of its their Restricted Subsidiaries to, directly or indirectly, create, incur, assume or otherwise become or remain liable with respect to any Indebtedness, except:
(a) the Secured Obligations (including any Additional Term Loans and any Additional Revolving Loans);
(b) Indebtedness of the any Borrower to any other Borrower or any Restricted Subsidiary and/or of any Restricted Subsidiary to the any Borrower and/or 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 Investment, such Indebtedness shall be permitted as an Investment by Section 6.06; provided, further, that any Indebtedness of any Loan Party owed owing to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany NoteAgent);
(c) [reserved];
(d) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stock, and Indebtedness arising from guaranteesguaranties, letters of credit, bank guaranteesguaranties, surety bonds, performance bonds or similar instruments securing the performance of the any Borrower or any such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of the any Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
(f) Indebtedness of the 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 Guarantees by the 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 the any Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets goods or Real Estate Investments services or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(h) guarantees Guarantees by the any Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the any Borrower or 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 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 any Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 and described on Schedule 6.01;
(j) [reserved]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 the 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 the 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 the any Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations 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 assets in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 US$32,000,000 and 0.7530% of Consolidated Total Assets Adjusted EBITDA of the Borrowers and their Restricted Subsidiaries as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided provided, that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and thereof, (ii) the Borrower is in 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 Financial CovenantsCollateral 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 the any Borrower or any Restricted Subsidiary to any stockholder of the Borrower any Parent Company or any current or former director, officer, employee, member of management, manager or consultant of the any Parent Company, any Borrower or any Subsidiary subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower any Parent Company permitted by Section 6.04(a);
(p) the Borrowers and their 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 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, penalties 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 the related refinancing transactionreplacement, (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 provided, that (x1) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition 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 (y2) if such additional Indebtedness is secured, the Lien securing such Refinancing Indebtedness satisfies the applicable requirements of is permitted under Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (ia), (m), (nq), (r), (w) and (uz) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)Customary Bridge Loans), such Indebtedness has (A) subject to the Permitted Earlier Maturity such Refinancing Indebtedness Exception, 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 Initial 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 remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such timereplaced,
(iii) [reserved]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 (uy) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clauseclause (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 incurred as Replacement Term Loans(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), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such 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, 6.01 and (C) if the Indebtedness being refinanced, refunded or replaced was expressly originally contractually subordinated to the Obligations in right of paymentpayment (or the Liens securing such Indebtedness were originally contractually subordinated to the Liens on the Collateral securing the Secured Obligations), (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, payment (or (y) if not contractually the Liens securing such Refinancing Indebtedness are subordinated to the Obligations in right of paymentLiens 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 purchaseLenders than those applicable to the Indebtedness (or Liens, defeasanceas applicable) being refinanced, redemptionrefunded or replaced, 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)taken as a whole, and
(vi) in the case of Replacement NotesRefinancing 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 provided, that any such Refinancing Indebtedness that is secured by Liens on pari passu or junior with respect to the Collateral shall be subject to any applicable Acceptable Intercreditor Agreementsa customary intercreditor agreement or an intercreditor agreement on terms reasonably satisfactory to the Administrative Agent and the Borrower Representative, (B) such if the Indebtedness being refinanced, refunded or replaced is secured, it is not secured by any assets other than the Collateral and Collateral, (C) if the Indebtedness being refinanced, refunded or replaced is Guaranteed, it shall not be incurred or guaranteed Guaranteed by any Person other than one or more a Loan PartiesParty and (D) if not pari passu, (C) such Refinancing Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such 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 lien basis may participate on a pro rata basis or a less than pro rata basis (xbut not greater than a pro rata basis) in any voluntary prepayments or mandatory prepayment in respect of the Term Loans as set forth in Section 2.11(a)(i) (and (y) in any mandatory prepayments of Additional Term Loans then subject to ratable repayment requirements), in each case, as set forth in Section 2.11(b)the Borrower Representative and the relevant lender may agree;
(q) [reserved];
Indebtedness incurred to finance acquisitions or similar Investments permitted hereunder after the Closing Date (rthe Indebtedness incurred pursuant to this Section 6.01(q), “Incurred Acquisition Debt”), in an unlimited amount so long as (A) if such Indebtedness of 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 and/or any Restricted Subsidiary in an aggregate outstanding principal amount Representative’s option, either (x) the Total Leverage Ratio would not to exceed 200% of 6.50:1.00 or (y) the amount of Net Proceeds received by the Borrower from any cash contribution (made in Consolidated Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital StockInterest Coverage Ratio would not be less than 2.00:1.00, in each case, case of clauses (iA) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and through (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (rC), calculated on a “Contribution Indebtedness Amount”);
(s) Indebtedness Pro Forma Basis, including the application of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
proceeds thereof (twithout “netting” the Cash proceeds of such Indebtedness) 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 the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period); provided, plus that (ii1) at any such Indebtedness that is subordinated to the election 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 Borrower date of incurrence thereof and (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a Loan
Appears in 2 contracts
Sources: Credit Agreement (Knowlton Development Corp Inc), Credit Agreement (Knowlton Development Parent, Inc.)
Indebtedness. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly, not create, incur, assume assume, suffer to exist or otherwise be or become or remain liable with respect to any Indebtedness except the following (collectively, “Permitted Indebtedness, except:”):
(a) the Obligations (including Indebtedness incurred pursuant to any Additional Term Loans)Credit Document;
(b) unsecured Indebtedness of the Borrower (other than Intercompany Indebtedness) in an aggregate principal amount at any one time outstanding not to exceed $5,000,000;
(c) Purchase Money Indebtedness (including Capital Lease Obligations); provided that the aggregate principal amount and the capitalized portion of such obligations do not at any one time exceed $7,500,000 in the aggregate at any one time outstanding;
(d) unsecured Indebtedness of the Borrower owing to any Restricted Subsidiary and/or Affiliate of any Restricted Subsidiary the Borrower in an aggregate outstanding principal amount not to exceed $15,000,000 so long as such Indebtedness is subordinated in right of payment to the Borrower and/or any other Restricted Subsidiary; provided, that any Indebtedness Loans in accordance with the terms of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party on terms that are subordination reasonably acceptable to the Administrative Agent (including pursuant to an “Intercompany NoteIndebtedness”);
(c) [reserved];
(d) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreement;
(e) Permitted Refinancing Indebtedness to refinance all or any portion of any Indebtedness permitted under this Section; provided that the amount of any such Permitted Refinancing Indebtedness shall be deemed outstanding as the same type of Indebtedness being refinanced for purposes of determining the capacity of the Borrower and/or to create, incur, assume, suffer to exist or otherwise be or become liable with respect to any Restricted Subsidiary Indebtedness (to the extent such capacity is limited hereunder);
(f) Indebtedness listed on Schedule 7.4(f);
(g) Performance Guarantees supporting the Project; provided that the terms of any such Performance Guarantee shall be generally consistent with past practice of the Borrower and its Affiliates and in no event shall any such Performance Guarantee be secured by Collateral;
(h) Indebtedness under any Permitted Commodity Hedge and Power Sales Agreement or other Swap Agreement entered into in accordance with Section 7.12;
(i) pursuant to tendersthe extent constituting Indebtedness, statutory obligations in respect of performance bonds, bid bonds, appeal bonds, surety bonds, completion guarantees, indemnification obligations, bidsobligations to pay insurance premiums, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other take-or-pay obligations contained in supply agreements and similar obligations incurred in the ordinary course of business and (ii) not in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing itemsconnection with Indebtedness for Borrowed Money;
(f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iiij) Indebtedness in respect of letters any bankers’ acceptance, letter of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts receipt or similar facilities entered into in the ordinary course of business;
(h) guarantees by the Borrower and/or any Restricted Subsidiary business and not in respect of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved]Swap Agreements;
(k) Indebtedness in respect of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentivenetting services, supply, license or similar agreements entered into overdraft protections and otherwise in the ordinary course of business;connection with deposit accounts; and
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting on then current market terms, so long as the proceeds thereof are used to fund Capital Expenditures relating to modifications to the Project to the extent required by Requirements of (i) the financing of insurance premiumsLaw, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of 19,500,000 at any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Dateone time outstanding; provided that (i) such Indebtedness (A) existed at has a final maturity date that is not earlier than, and provides for no scheduled payments of principal or mandatory redemption obligations prior to, the time such Person became a Restricted Subsidiary date that is one year after the Scheduled Termination Date. To the extent that the creation, incurrence or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation assumption of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) could be attributable to more than one subsection of this Section 6.01 (“Refinancing Indebtedness”) and 7.4, the Borrower may allocate such Indebtedness to any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount one or more of such subsections and in no event shall the same portion of Indebtedness does not exceed be deemed to utilize or be attributable to more than one subsection. For the principal amount avoidance of the doubt, any 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 by 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 securedBorrower, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in as the case of Refinancing Indebtedness with respect to clauses (i)may be, (m), (n), (r) and (u) (and other than customary bridge loans with under a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) specific subsection of this Section 6.01, the incurrence thereof shall be without duplication of 7.4 and any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred Guarantee in respect of such Indebtedness which is also permitted to be incurred by the Borrower, as the case may be, under clause (a) the same subsection of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and 7.4 shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such count as two separate amounts of Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions for purposes of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu calculating compliance 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 limitations set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a Loansubsection.
Appears in 2 contracts
Sources: Credit Agreement (REV Renewables, Inc.), Credit Agreement (REV Renewables, Inc.)
Indebtedness. The Borrower shall will not, nor shall it and will not 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 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 Obligations definition of Permitted Liens and (including ii) not be subject to or benefit from any Additional Term Loans)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) Junior Lien Indebtedness of the Borrower to Loan Parties and any Restricted Subsidiary and/or 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 Restricted Subsidiary 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 the Borrower and/or clause (i) or (ii) above (or any other Restricted Subsidiarysuccessive Permitted Refinancing Indebtedness); provided, further, that any Junior Lien Indebtedness shall not be secured other than as permitted by clause (2) of any Loan Party owed to any Restricted Subsidiary the definition of Permitted Liens; provided further that in the event such Indebtedness being Guaranteed is not a Loan Party must be expressly subordinated in right of payment to the Obligations Loans, then the related Guarantee shall be subordinated in right of such Loan Party on terms that are reasonably acceptable payment to the Administrative Agent (including pursuant to an Intercompany Note)Loans or the Guarantees guaranteeing the Loans, as the case may be;
(c) [reserved];
(d) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreement;
(e) unsecured Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
(f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Loan Parties that is Permitted Refinancing Indebtedness in respect of letters either Permitted Debt or Junior Lien Indebtedness (or any successive Permitted Refinancing Indebtedness) and any Guarantees of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into a Loan Party in the ordinary course respect of business;
(h) guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Dateforegoing; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets shall not be subject to such Indebtedness were acquired and (B) was or benefit from any Guarantee by any Person that does not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and also Guarantee the Obligations, (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (x) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by with the Collateral on a pari passu Obligations or junior basis subordinated in right of payment with respect to the remaining Obligations hereunderObligations, or is unsecured; provided that with any such Indebtedness that is secured by Liens subordinated obligation on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative AgentAgent and (iii) or (z) reflect then current market terms and conditions (taken as a whole) at in the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any event such Indebtedness that being Guaranteed is pari passu with the Initial Term Loans hereunder subordinated 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) Loans, then the related Guarantee shall be subordinated in any voluntary prepayments right of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) payment to the common equity of Loans or the Borrower and from Guarantees guaranteeing the issuance and sale by Loans, as the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”)case may be;
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a Loan
Appears in 2 contracts
Sources: Credit Agreement (Wheels Up Experience Inc.), Credit Agreement (Wheels Up Experience Inc.)
Indebtedness. The Each Borrower shall not, nor and shall it not permit any of its Restricted Subsidiaries to, directly or indirectlycreate, createissue, incur, assume assume, become liable in respect of or otherwise become or remain liable with respect permit to exist any Indebtedness, except:
(a) Indebtedness in respect of the Obligations (including any Additional Term Loans)Obligations;
(b) Indebtedness evidencing the deferred purchase price of any newly acquired specific fixed asset consisting of personal property, or incurred to finance all or part of the Borrower acquisition of equipment of such Borrowers or any of its Subsidiaries (pursuant to any Restricted Subsidiary and/or of any Restricted Subsidiary purchase money security interest Indebtedness or otherwise, whether owed to the Borrower and/or any other Restricted Subsidiaryseller or a third party); provided, provided that any such Indebtedness is incurred within ninety (90) days of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations acquisition of such Loan Party on terms property and in respect of Capital Lease Obligations; and provided further that are reasonably acceptable to the Administrative Agent (including aggregate amount of all Indebtedness outstanding pursuant to an Intercompany Notethis clause (b) shall not at any time exceed $5,000,000 (or, if denominated in a non-Dollar currency, the Dollar Equivalent thereof calculated as of the date of such acquisition);
(c) [reserved]Indebtedness pursuant to any Hydrocarbon Hedge Agreement or Interest Hedge Agreement (in each case, not being a Designated Hedge Agreement); provided that such Hedge Agreement otherwise complies with the terms of Section 8.14;
(d) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred an Obligor to another Obligor that is subordinated in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior priority and right of payment to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing Obligations on terms reasonably satisfactory to the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreementMajority Lenders;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant Borrowers with respect to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of standby letters of credit, bank guarantiesguarantees, surety bondsindemnities, performance sureties or bonds provided to any Governmental Authority or similar instruments to support any other Person and assuring payment of contingent liabilities of the foregoing items;Borrowers and their Subsidiaries in connection with the operations of their respective businesses or the operation of the Hydrocarbon Interests, including with respect to plugging, facility removal, environmental remediation and abandonment of its Hydrocarbon Interests, in an aggregate amount not to exceed $2,500,000 (or, if denominated in a non-Dollar currency, the Dollar Equivalent thereof calculated as of the date of such incurrence) at any time; and
(f) Indebtedness described in Item 8.1(f) of the Borrower and/or any Restricted Subsidiary Disclosure Schedule. For the avoidance of doubt, nothing in this Section 8.1 shall restrict the Parent or its Subsidiaries (other than the Borrowers and their respective Subsidiaries) from issuing, incurring, assuming, or becoming liable in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(h) guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (x) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a Loan.
Appears in 2 contracts
Sources: Credit Agreement (Transatlantic Petroleum Ltd.), Credit Agreement (Transatlantic Petroleum Ltd.)
Indebtedness. The Borrower Company shall not, nor shall it permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectlyincur, create, incur, assume or otherwise become or remain liable with respect suffer to exist any Indebtedness, except:
(a) the Loans, any Notes or other Secured Obligations (arising under the Loan Documents or any Secured Swap Agreement or any guaranty of or suretyship arrangement for the Loans, any Notes or other Secured Obligations arising under the Loan Documents or any Secured Swap Agreement, including any Additional Term Loans)deferred put premiums associated with Swap Agreements entered into with an Approved Counterparty;
(b) Specified Existing Indebtedness of in the Borrower to any Restricted Subsidiary and/or of any Restricted Subsidiary to the Borrower and/or any other Restricted Subsidiary; provided, that any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party aggregate outstanding amounts set forth on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note)Schedule 9.02;
(c) [reserved]Specified Additional Bond Indebtedness, so long as, after giving pro forma effect to the incurrence of such Specified Additional Bond Indebtedness, the Aggregate Weighted Average Life to Maturity of all outstanding Debt for Borrowed Money is greater than the Weighted Average Life to maturity of the Loans;
(d) Specified Additional Factoring Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior an aggregate outstanding amount not to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreementexceed $10,000,000;
(e) Indebtedness associated with worker’s compensation claims, performance, bid, surety or similar bonds or surety obligations required by Governmental Requirements or third parties in connection with the operation of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business Oil and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing itemsGas Properties;
(f) Indebtedness of between or among 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 Company and any arrangements Subsidiaries to the extent permitted by Section 9.05(e); provided that such Indebtedness is not held, assigned, transferred, negotiated or services similar pledged to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(h) guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or Person other obligations of than the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date a Guarantor and, to the extent in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) Indebtedness of the Borrower and/or provided further, that any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued owed by the Borrower or any Restricted Subsidiary a Guarantor shall be subordinated to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of Secured Obligations on terms set forth in the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);Guarantee and Collateral Agreement; and
(pg) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (x) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity obligations of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower Company or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount owed to incur a transaction (the amount any Lender or Affiliate of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations Lender in respect of letters treasury management arrangements, depositary or other cash management services, including any treasury management line of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a Loan.
Appears in 2 contracts
Sources: Senior Secured Credit Agreement (Phoenix Capital Group Holdings, LLC), Senior Secured Credit Agreement (Phoenix Capital Group Holdings, LLC)
Indebtedness. (a) The Borrower Company will not permit any Subsidiary to be liable for the New Bonds or any other Material Indebtedness (other than (x) Indebtedness referred to in clauses (i), (ii) and (iii) of paragraph (b) below, (y) Guarantees by Foreign Subsidiaries of Material Indebtedness of other Foreign Subsidiaries and (z) Material Indebtedness of Foreign Subsidiaries and which Indebtedness is not Guaranteed by any Domestic Subsidiary), whether as a primary obligor or under any Guarantee, unless such Subsidiary (i) shall be a party to and a Guarantor under the Guarantee Agreement or (ii) if the Guarantee Agreement shall have been terminated as provided in Section 11.16, shall have executed and delivered a Guarantee of the Obligations satisfactory in form and substance to the Administrative Agent. The Company will not permit any such Material Indebtedness to contain any provision requiring, contingently or otherwise, that any Subsidiary guarantee any obligations thereunder (other than any provision requiring Guarantees by Foreign Subsidiaries of Material Indebtedness of other Foreign Subsidiaries) unless this Agreement shall have been amended to incorporate such provision, mutatis mutandis, into the appropriate Article herein.
(b) The Company will not, nor shall it and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create, incur, assume or otherwise become permit to exist any Indebtedness under any Securitization, or remain liable with respect to any Indebtedness, except:
(a) the Obligations (including any Additional Term Loans);
(b) 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 any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note);
(c) [reserved];
(d) Indebtedness arising from any agreement providing for indemnificationExcluded Subsidiary, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
(f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(h) guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;than:
(i) Indebtedness of under the Borrower and/or 2003 Securitization or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.01other receivables Securitization;
(jii) [reserved]Indebtedness of Excluded Subsidiaries (other than any Securitization Entity) in an aggregate principal amount not exceeding $400,000,000 at any time outstanding;
(kiii) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations incurred by Pharmerica and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred its subsidiaries 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), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the thenPharmerica Spin-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a LoanOff.
Appears in 2 contracts
Sources: Credit Agreement (Amerisourcebergen Corp), Credit Agreement (Amerisourcebergen Corp)
Indebtedness. The Borrower shall notNone of the Loan Parties shall, nor shall it they permit any of its Restricted their Subsidiaries to, directly or indirectly, create, incur, assume or otherwise become or remain liable with respect to any Indebtedness, except:
(a) the Secured Obligations (including any Additional Term Loans and Additional Revolving Loans);
(b) Indebtedness of the Borrower any Subsidiary of Holdings to any Restricted Subsidiary and/or other Subsidiary; provided that in the case of any Restricted Indebtedness of a Subsidiary (x) that is not a Loan Party owing to the Borrower and/or any other Restricted Subsidiarya 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 any (A) all such Indebtedness shall be evidenced by intercompany promissory notes and all such notes owned or held by a Loan Party shall be subject to a First Priority Lien pursuant to the Pledge and Security Agreement and (B) with respect to all such Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party such Indebtedness must be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note)Agent;
(c) [reservedIndebtedness incurred in respect of the Subordinated Notes in an aggregate principal amount that does not exceed $40,000,000[Reserved];
(d) Indebtedness arising from any agreement agreements 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 hereunder or Permitted Acquisitions permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof or any other purchase purchases of assets or Capital Stock, and Indebtedness arising from guaranteesguaranties, letters of credit, bank guarantees, surety bonds, bonds or performance bonds or similar instruments securing the performance of any member of the Borrower or any such Restricted Subsidiary Combined Group pursuant to any such agreementagreements;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) which may be deemed to exist pursuant to any tenders, statutory obligations, bidssurety, stay, customs, appeal, bid, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or and return of money bonds or other similar obligations incurred in the ordinary course of business business, in each case not constituting any Indebtedness for borrowed money, and (ii) in respect of any letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing itemscredit related thereto;
(f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of (i) commercial credit cards, stored value cards, purchasing cards, cards and treasury management services, including Banking Services Obligations, and other netting services, overdraft protections, check drawing servicesautomated clearing-house arrangements, automated payment services (including depository, overdraftemployee credit card programs, controlled disbursement, ACH transactions, return items and interstate depository network services)services and, employee credit card programsin each case, cash pooling services similar arrangements and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programsAccounts and (ii) Securities that are the subject of repurchase agreements constituting Investments permitted under Section 6.03 arising out of repurchase transactions;
(i) guarantees by the Borrower and/or any Restricted Subsidiary 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 of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets goods or Real Estate Investments services or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, any bankers’ acceptances, bank guaranties or similar instruments acceptance 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 Guarantees of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 (except with respect to clause (o)) or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee Guarantees (x) by any a Loan Party of the obligations of any a non-Loan Party or (y) by a Specified Loan Party of the Obligations of a Loan Party that is not a Specified Loan Party, in each case the related Investment is permitted under Section 6.066.03; provided, further, that (A) no Guarantee by any Subsidiary of any Indebtedness constituting Subordinated Indebtedness or Junior Lien Indebtedness shall be permitted unless such guaranteeing party shall have also provided a Guarantee of the Obligations on the terms set forth herein, (B) if the Indebtedness being Guaranteed is Subordinated Indebtedness, such Guarantee shall be subordinated to the Guarantee of the Obligations on terms at least as favorable (as reasonably determined by the Borrower Representative) to the Lenders as those contained in the subordination terms of such Indebtedness and (C) any Guarantee by a Subsidiary that is not a Loan Party of any Indebtedness under Sections 6.01(n), (q) and (t) (or any Refinancing Indebtedness in respect thereof) shall only be permitted if such Guarantee meets the requirements of Sections 6.01(n), (q) or (t), as the case may be;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existingwith respect to Capital Lease, or pursuant to commitments existingequipment and insurance financing obligations, in each case, listed on Schedule 6.01 on the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.01Third Amendment Effective Date;
(j) [reserved]Indebtedness of Subsidiaries that are not Loan Parties; provided that the aggregate outstanding principal amount of such Indebtedness shall not exceed $5,000,000;
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under dealer incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations (i) 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 in connection with the incurrence of such Indebtedness in an aggregate outstanding principal amount not to exceed the greater $7,500,000 and (ii) any refinancing of $33,000,000 and 0.75% such Indebtedness permitted under Section 6.01(p) (without duplication of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenantsamounts permitted under this clause (m));
(n) Indebtedness of any a Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder a Permitted Acquisition after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and thereof, (ii) no Event of Default exists or would result therefrom, (iii) the Borrower Total Leverage Ratio and the Secured Leverage Ratio would not exceed 4.93.50:1.00 and 3.75:1.00, respectively, 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 (iv) if such Indebtedness is in pro forma compliance being assumed by Subsidiaries that are not Loan Parties, the aggregate outstanding principal amount of such Indebtedness, when aggregated with the Financial Covenantsoutstanding principal amount of all Indebtedness of Subsidiaries that are not Loan Parties pursuant to Sections 6.01(q) and 6.01(t), shall not exceed $5,000,000;
(o) Indebtedness consisting of unsecured subordinated promissory notes in form and substance reasonably acceptable to the Administrative Agent issued by the any Borrower or any Restricted Subsidiary to any stockholder stockholders of the Borrower any Parent Company or any current or former directordirectors, officerofficers, employeeemployees, members of management or consultants of any Parent Company or any member of management, manager or consultant of the Borrower or any Subsidiary Combined Group (or their respective Immediate Family Members) and not Guaranteed by a Subsidiary of Holdings to finance the purchase or redemption of Capital Stock of the Borrower any Parent Company permitted by Section 6.04(a)6.04;
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (c), (i), (m), (n), (rq), (t), (u) and (zv) 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:
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) by an amount equal to unpaid accrued interest, penalties 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 paymentsfees and OID) incurred in connection with the relevant refinancing, refunding such refinancing or replacement and the related refinancing transactionreplacement, (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 (provided that (x) any so long as such additional Indebtedness referenced in this clause (C) satisfies meets 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) and, 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), ) or (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to on or later than (and, in the case of revolving Indebtedness, does shall not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and and, other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
replaced, (iii) [reserved],
the terms of such Refinancing Indebtedness (excluding pricing, fees, premiums, rate floors, optional prepayment or optional redemption terms (and, if applicable, subordination terms) and, with respect to Refinancing Indebtedness with respect to clauses (a), (c) and, if applicable, (v) of this Section 6.01, 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 on then-current market terms for the applicable type of Indebtedness), (iv) except in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans), (A) such Indebtedness, if secured, Indebtedness is secured only by Permitted Liens securing the Indebtedness being refinance, refunded or replaced at the time of such refinancing, refunding or replacement and, if secured by Collateral, be subject to an intercreditor agreement on terms reasonably satisfactory to the Administrative Agent (it being understood understood, however, that secured such Indebtedness may be refinanced with unsecured Indebtednessgo from being secured to being unsecured), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (Bv) 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, (Cvi) if the Indebtedness being refinanced, refunded or replaced was expressly originally contractually subordinated to the Obligations in right of paymentpayment (or the Liens securing such Indebtedness were originally contractually subordinated to the Collateral), (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, payment (or (y) if not contractually the Liens securing such Indebtedness shall be subordinated to the Obligations Collateral) on terms not less favorable, 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, (vii) Indebtedness of any Borrower or any Subsidiary thereof shall not refinance Indebtedness of an Unrestricted Subsidiary, (viii) except in right the case of paymentclause (a), as of the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement date of incurring such Indebtedness is permitted under Section 6.04(b) and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (other than Section 6.04(b)(i), and
(viix) in the case of Replacement NotesRefinancing Indebtedness with respect to clause (a), (A) such Indebtedness is shall be pari passu or junior in right of payment and be secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is shall be unsecured; provided that any such Indebtedness that is secured by Liens on pari passu or junior with respect to the Collateral shall be subject to any applicable Acceptable Intercreditor Agreementsan intercreditor agreement on terms reasonably satisfactory to the Administrative Agent, (B) if such Indebtedness being refinanced, refunded or replaced is secured, it shall not be secured by any assets other than the Collateral and shall be secured pursuant to security documentation that is no more restrictive on the Loan Parties than the Loan Documents, (C) if such Indebtedness being refinanced, refunded or replaced is Guaranteed, it shall not be incurred or guaranteed Guaranteed by any Person other than one or more Loan PartiesHoldings, the Borrowers and the Subsidiary Guarantors, (CD) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, (E) any prepayment (other than scheduled amortization payments) of any such Refinancing Indebtedness in the form of term loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepayment), except that the Borrowers and the lenders in respect of such Refinancing Indebtedness shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis) and (DF) if in the case of any Refinancing Indebtedness that is in the form of revolving Indebtedness, such Replacement Notes are incurred Indebtedness will be subject to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other same terms and conditions of such Replacement Notes, if not substantially identical to as those applicable to the Indebtedness being refinanced Revolving Facility (as determined by the Borrower in good faith), must either, at the option and be deemed added to and made a part of the Borrower, (xRevolving Facility) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in the case of any voluntary prepayments Refinancing Indebtedness, the incurrence of Term Loans as set forth in such Refinancing Indebtedness shall be without duplication of any amounts outstanding under the applicable clauses of this Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b)6.01;
(q) [reserved];
(r) Indebtedness of incurred to finance Permitted Acquisitions after the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, Closing Date; provided that (i) other than any Net Proceeds received from the sale no Event of Capital Stock toDefault exists (or would result therefrom), or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution AmountTotal Leverage Ratio and the Secured Leverage Ratio would not exceed 4:903.50:1.00 and 3:75:1.00, respectively, calculated on a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets Pro Forma Basis as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate Period for which financial statements have been delivered pursuant to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
5.01 (v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by determined without netting the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness proceeds of any Restricted Subsidiary that is such incurrence and assuming all such Indebtedness would be deemed to be Consolidated Secured Debt, whether or not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of satisfying the Borrower, any Restricted Subsidiary that is a Loanrequirements therefor),
Appears in 2 contracts
Sources: Credit Agreement (Osmotica Pharmaceuticals PLC), Credit Agreement (Osmotica Pharmaceuticals LTD)
Indebtedness. The Borrower Intermediate Dutch Holdings shall not, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly, to create, incur, assume or otherwise become or remain liable with respect to any Indebtedness, except:
(a) the Secured Obligations (including any Additional Term LoansLoan and/or any Additional Revolving Loan);
(b) Indebtedness of the Borrower (i) Intermediate Dutch Holdings to Holdings and/or any Restricted Subsidiary and/or of (ii) any Restricted Subsidiary to the Borrower Holdings, Intermediate Dutch Holdings and/or any other Restricted Subsidiary; provided, that in the case of any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated owing to any Loan Party, the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note)related Investment is permitted under Section 6.06;
(c) [reserved];
(di) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with the Transactions, any Disposition permitted hereunder, any acquisition or other Investment permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital StockStock or any other Investment, and (ii) Indebtedness arising from guaranteesguaranties, letters of credit, bank guaranteesguaranties, surety bonds, performance bonds or similar instruments securing the performance of the Borrower Intermediate Dutch Holdings or any such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of the Borrower Intermediate Dutch Holdings and/or any Restricted Subsidiary (i) as a result of or pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
(f) Indebtedness of the Borrower Intermediate Dutch Holdings 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 Banking Services and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(g) (i) guarantees Guarantees by the Borrower Intermediate Dutch Holdings and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower Intermediate Dutch Holdings and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets goods or Real Estate Investments services or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(h) guarantees Guarantees by the Borrower Intermediate Dutch Holdings and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or Intermediate Dutch Holdings, any Restricted Subsidiary and/or any joint venture with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;
(i) (A) Indebtedness of the Borrower Intermediate Dutch Holdings and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date andDate; provided, to the extent that any such Indebtedness or commitment having an outstanding principal amount in excess of $6,000,000 10,000,000 shall be described on Schedule 6.016.01 and (B) intercompany Indebtedness outstanding on the Closing Date;
(j) [reserved]Indebtedness of Restricted Subsidiaries that are not Loan Parties; provided, that the aggregate outstanding principal amount of such Indebtedness shall not exceed the greater of $246,000,000 and 50% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(k) Indebtedness of the Borrower Intermediate Dutch Holdings and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower Intermediate Dutch Holdings and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower Intermediate Dutch Holdings and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations Capital Leases and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 123,000,000 and 0.7525% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or and/or Indebtedness assumed in connection with an any acquisition or any other similar investment permitted hereunder after the Closing DateInvestment; provided that 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 contemplation of such the applicable acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and similar Investment, and
(ii) after giving effect to such Indebtedness on a Pro Forma Basis, either:
(A) (1) if such Indebtedness is First Lien Debt, the Borrower First Lien Net Leverage Ratio does not exceed the First Lien Net Leverage Ratio as of the last day of the most recently ended Test Period, (2) if such Indebtedness is Junior Lien Debt, the Secured Net Leverage Ratio does not exceed the Secured Net Leverage Ratio as of the last day of the most recently ended Test Period or (3) if such Indebtedness is not secured by the Collateral or is unsecured, the Total Net Leverage Ratio does not exceed the Total Net Leverage Ratio as of the last day of the most recently ended Test Period;
(B) Intermediate Dutch Holdings is in pro forma compliance with Section 6.10 hereof (whether or not then in effect) as of the Financial Covenantslast day of the most recently ended Test Period; or
(C) such Indebtedness is in an aggregate principal amount outstanding not to exceed the greater of $100,000,000 and 20% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(o) Indebtedness consisting of promissory notes issued by the Borrower Intermediate Dutch Holdings or any Restricted Subsidiary to any stockholder of the Borrower any Parent Company or any current or former director, officer, employee, member of management, manager or consultant of the Borrower any Parent Company, Intermediate Dutch Holdings or any Subsidiary subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower any Parent Company permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (j), (m), (n), (r), (u) and ), (w), (x), (y), (z), (hh) and/or (ii) of this Section 6.01 (in any case, including any refinancing Indebtedness incurred in respect thereof, “Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of 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 provided, that (x1) 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 (y2) 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 (ia), (m), w) and/or (n), z) (rother than (I) Customary Bridge Loans and (uII) (and other than customary bridge loans with a maturity date of not longer than one year; provided Refinancing Indebtedness that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject the Borrower Representative elects to apply to the requirements of this clause (ii)Inside Maturity Amount), such Indebtedness (other than revolving indebtedness) has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial 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 remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,;
(iii) [reserved],the terms of any Replacement Debt with an original principal amount in excess of the Threshold Amount (excluding, to the extent applicable, pricing (including any “MFN” provision), fees, premiums, rate floors, optional prepayment, funding discounts, maturity, amortization schedule, redemption terms or subordination terms and security), are not, taken as a whole (as determined by the Borrower Representative in good faith), more favorable to the lenders providing such Indebtedness than those applicable to the Indebtedness being refinanced, refunded or replaced (other than (A) any covenant or any other provision applicable only to periods after the applicable maturity date of the debt then being refinanced as of such date, (B) any covenant or provision which constitutes a then-current market term for the applicable type of Indebtedness (as determined by the Borrower Representative in good faith), or (C) any covenant or other provision which is conformed (or added) to the Loan Documents for the benefit of the Lenders or, as applicable, the Administrative Agent, pursuant to an amendment to this Agreement effectuated in reliance on Section 9.02(d)(ii)), it being understood and agreed that if any Replacement Debt that constitutes a revolving facility includes a financial covenant, the requirement set forth in this clause (iii) shall be satisfied if such financial covenant is added to this Agreement for the benefit of the then-existing Revolving Facility but not any then-existing Term Facility);
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (j), (m), (n)(ii)(C), (r) and ), (u), (w) (solely as it relates to the Shared Incremental Amount), (x), (y), (z) (solely as it relates to the Shared Incremental Amount), (hh) and/or (ii) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts amount outstanding in reliance on the relevant clause,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 incurred as constituting Replacement Term LoansDebt, (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, to the extent and (2) either (x) if the Liens securing such Indebtedness were originally contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Tranche B-3 Term Loans, the Eleventh Amendment Dollar Refinancing Term Loans and the Eleventh Amendment Euro Refinancing Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Tranche B-3 Term Loans, the Eleventh Amendment Dollar Refinancing Term Loans and the Eleventh Amendment Euro Refinancing Term Loans on terms not materially less favorable (as reasonably determined by the BorrowerBorrower Representative in good faith), taken as a whole, to the Lenders than those (I) applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or (II) set forth inin any relevant Intercreditor Agreement or (y) the purchase, defeasance, redemption, repurchase, repayment, refinancing or otherwise subject to, an Acceptable Intercreditor Agreementother acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i)); it being understood that the proceeds of any such Refinancing Indebtedness may be funded into Escrow pursuant to customary (in the good faith determination of the Borrower Representative) escrow arrangements, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.016.01 (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 NotesDebt, (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 secured by Liens on pari passu or junior with respect to the Collateral shall be subject to any applicable Acceptable an Intercreditor AgreementsAgreement, (B) such if the Indebtedness being refinanced, refunded or replaced is secured, it is not secured by any assets other than asset that does not constitute Collateral, (C) if the Collateral and Indebtedness being refinanced, refunded or replaced is Guaranteed, it shall not be incurred or guaranteed Guaranteed by any Person Restricted Subsidiary of Intermediate Dutch Holdings other than one or more Loan Parties, Parties and (CD) such Refinancing Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower Intermediate Dutch Holdings and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by Intermediate Dutch Holdings and/or its Restricted Subsidiaries from (i) the Borrower from issuance or sale of Qualified Capital Stock or (ii) any cash Cash contribution (made in Cash or converted into Cash) to the its common equity of with the Borrower and Net Proceeds from the issuance and sale by the Borrower any Parent Company of its Qualified Capital StockStock or a contribution to the Qualified Capital Stock of any Parent Company, in each case, (iA) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower Intermediate Dutch Holdings or any of its Restricted Subsidiaries Subsidiaries, (B) to the extent the relevant Net Proceeds have not otherwise been applied to make Investments, Restricted Payments or Restricted Debt Payments hereunder in reliance on a provision of Section 6.06, Section 6.04(a) or Section 6.04(b), as applicable, with respect to which such Net Proceeds were required to permit the relevant transaction and (iiC) other than the any Cure Amount and/or any Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower Intermediate Dutch Holdings and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower Intermediate Dutch Holdings and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower any Parent Company, Intermediate Dutch Holdings and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a LoanR
Appears in 2 contracts
Sources: Credit Agreement (NIQ Global Intelligence PLC), Credit Agreement (NIQ Global Intelligence LTD)
Indebtedness. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly, createCreate, incur, assume or otherwise become or remain liable with respect suffer to exist any Indebtedness, except:
(a) Indebtedness under the Obligations (including any Additional Term Loans)Loan Documents;
(b) 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 any Indebtedness of any a Loan Party owed (i) to any another Loan Party or (ii) to a Restricted Subsidiary that is not a Loan Party must to the extent permitted as an Investment pursuant to Section 7.04; provided, in each case that with respect to clause (ii), any such Indebtedness shall be expressly subordinated in right of payment to the Obligations of such Loan Party pursuant to the Intercompany Subordination Agreement or otherwise on customary terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note)Required Lenders;
(c) [reserved]Indebtedness incurred as a result of endorsing negotiable instruments for deposit or collection in the ordinary course of business;
(d) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) unsecured current accounts payable incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof or any other purchase ordinary course of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreementbusiness;
(e) Indebtedness set forth on Schedule 7.05 hereto and any extensions, renewals and replacements of the Borrower and/or any Restricted Subsidiary such Indebtedness which does not (i) increase the principal amount thereof, (ii) shorten the maturity thereof, (iii) add any obligor with respect thereto, and (iv) provide for a security interest secured on any assets except those (if any) that secured such Indebtedness prior to any such extension, renewal or replacement;
(f) Indebtedness arising pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds bonds, or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
(f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(hg) guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any representing incentive, non-Loan Partycompete, the related Investment is permitted under Section 6.06;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existingconsulting, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license deferred compensation 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 arrangements with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (x) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or Loan Parties and their Subsidiaries in the ordinary course of business;
(h) Guarantees of Indebtedness to the extent the Person providing such Guarantee would be permitted to incur the applicable Indebtedness under this Agreement;
(i) obligations for ad valorem, severance and other taxes payable that permitted to be outstanding pursuant to Section 6.04(a);
(j) Indebtedness under Capital Leases and Indebtedness incurred to finance the acquisition, construction or improvement of any Restricted Subsidiary asset, in each case, incurred prior to or within 270 days after the purchase, lease, construction, installation, maintenance, replacement or improvement of the applicable asset, and any extensions, renewals and replacements of any such Indebtedness in an aggregate amount not to exceed not to exceed $1,500,000 in the aggregate at any time outstanding ;
(k) non-credit recourse (for the avoidance of doubt, excluding recourse for matters such as fraud, misappropriation, and misapplication) Indebtedness incurred under or in connection with any SPV Transaction, including Indebtedness owed to any SPV Entity;
(l) Payment Dependent Notes;
(m) other unsecured Indebtedness in an aggregate amount not to exceed $750,000 at any time;
(n) Indebtedness with respect to Banking Services in the ordinary course of business provided that such Indebtedness incurred under clauses (a) and (iib) deferred compensation of the definition of “Banking Services” shall not exceed $250,000 at any time outstanding;
(o) unsecured Indebtedness in respect of netting services, overdraft protection, and other like services, in each case incurred in the ordinary course of business consistent with past practice;
(p) endorsements for collection, deposit or other similar arrangements negotiation and warranties of products or services, in each case in the ordinary course of business;
(q) Indebtedness consisting of Swap Contracts entered into in the ordinary course of business for bona fide hedging purposes and not for speculation;
(r) Indebtedness consisting of unpaid insurance premiums owing to insurance companies and insurance brokers incurred in connection with the Transactions, any Permitted Acquisition or any other Investment permitted herebyfinancing of insurance premiums in the ordinary course of business;
(us) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds workers' compensation claims (or other similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claimsobligations), performance, bid and surety bonds and completion guaranties, in each case, in the ordinary course of business;
(bbt) Indebtedness in respect of indemnification claims relating to adjustments of purchase price or similar obligations in any case incurred in connection with any transaction permitted under Section 7.04 or 7.07 (but in no case in connection with earnouts, seller notes or similar obligations);
(u) Indebtedness constituting letters of credit issued on behalf of the Loan Parties or any of their respective Subsidiaries in a face amount thereof not to exceed (i) $3,000,000 in the aggregate at any time outstanding, plus (ii) $5,000,000 (or such higher amount as may be agreed by the Administrative Agent at the direction of the Required Lenders) in the aggregate at any time outstanding used to satisfy the requirements of an applicable Governmental Authority (including but not limited to state licensing obligations) less the amount of balances held in accounts described in clause (c) of the definition of Excluded Accounts;
(v) Indebtedness owing to current and former employees, officers, directors or consultants (or any spouses, ex-spouses, or estates of any of the foregoing) incurred in connection with the repurchase or redemption of the Equity Interests of the Borrower permitted under Section 7.08(b) that has been issued to such Persons, not to exceed $750,000 at any time outstanding;
(w) Indebtedness owing under the lease portion of a sale leaseback;
(x) Indebtedness of any Restricted Person that becomes a Subsidiary after the date hereof; provided that such 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;
(y) unsecured Indebtedness in respect of earnouts or similar contingent obligations owing to sellers of assets or Equity Interests to such Loan Party or its Subsidiaries that is incurred in connection with the consummation of one or more Permitted Acquisitions or other Investments permitted under Section 7.04; and
(z) accrual of interest, accretion or amortization of original issue discount, or the payment of interest in kind, in each case, on Indebtedness otherwise permitted under this Section 7.05, in each case so long as such amounts are not a Loan Party under prohibited by any Asset Financing Facility applicable subordination or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a Loanintercreditor terms pertaining thereto.
Appears in 2 contracts
Sources: Credit Agreement (Prosper Funding LLC), Credit Agreement (Prosper Funding LLC)
Indebtedness. The Borrower shall notNo Credit Party shall, nor shall it permit any of its Restricted the OZ 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) Indebtedness created hereunder and under the Obligations (including any Additional Term Loans)other Credit Documents;
(b) Indebtedness of existing on the Borrower to any Restricted Subsidiary and/or of any Restricted Subsidiary to the Borrower and/or any other Restricted Subsidiary; provided, that any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party Closing Date and listed on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note)Schedule 6.01;
(c) [reservedReserved];
(d) Indebtedness arising from of (i) any agreement providing for indemnificationCredit Party to any other Credit Party or any OZ Subsidiary, adjustment of purchase price or similar obligations and (including contingent earn-out obligationsii) incurred in connection with any Disposition permitted hereunder, OZ Subsidiary to any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof Credit Party or any other purchase OZ Subsidiary; provided that any Indebtedness owed by any Credit Party to any OZ Subsidiary that is not a Credit Party incurred pursuant to this clause (d) shall be subordinated in right of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing payment to the performance payment in full of the Obligations (other than contingent or indemnification obligations to which no claim has been asserted or that are not then due and payable) on terms substantially in the form of Exhibit I (or such other subordination terms as may be mutually agreed between any Borrower or any such Restricted Subsidiary pursuant to any such agreementand Administrative Agent);
(e) Indebtedness current liabilities of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds Credit Parties or other similar obligations the OZ Subsidiaries incurred in the ordinary course of business and but not incurred through (i) the borrowing of money or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in respect fact extended in connection with normal purchases of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing itemsgoods and services;
(f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cardstaxes, stored value cardsassessments, purchasing cardsgovernmental charges or levies and claims for labor, treasury management services, netting services, overdraft protections, check drawing services, automated materials and supplies to the extent that 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 therefor shall not at the time be required to any be made in accordance with the provisions of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programsSection 5.03;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iiig) Indebtedness in respect of letters judgments or awards only to the extent, for the period and for an amount not resulting in a Default;
(h) endorsements for collection, deposit or negotiation and warranties of creditproducts or services, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in each case incurred in the ordinary course of business;
(hi) guarantees Indebtedness in the form of either a direct obligation of a Credit Party or OZ Subsidiary or in the form of a guaranty by the Borrower and/or any Restricted Subsidiary of Indebtedness a Credit Party or other obligations of the Borrower or any Restricted Subsidiary OZ Subsidiary, in each case, with respect to Indebtedness otherwise permitted the obligation to be incurred pursuant to this Section 6.01 refund 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 Partyrepay management, the related Investment is permitted under Section 6.06;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, incentive or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.01promote fees previously received from a fund;
(j) [reserved]Indebtedness incurred by a Credit Party or OZ Subsidiary arising from agreements providing for indemnification, earn-outs, adjustment of purchase price or similar obligations, or from guaranties or letters of credit, surety bonds or performance bonds securing the performance of such Credit Party or OZ Subsidiary, as applicable, pursuant to such agreements, in connection with permitted acquisitions or permitted dispositions of any business or assets of a Credit Party or OZ Subsidiary;
(k) Indebtedness of the Borrower and/or which may be deemed to exist pursuant to any Restricted Subsidiary consisting of obligations owing under incentiveguaranties, supplyperformance, license surety, statutory, appeal or similar agreements entered into obligations incurred in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(l) Indebtedness in respect of the Borrower and/or any Restricted Subsidiary consisting of netting services, overdraft protections and otherwise in connection with margin accounts, deposit accounts and cash management services, including, but not limited to (i) the financing of insurance premiumscredit cards (including, without limitation, “commercial credit cards” and purchasing cards), (ii) take-or-pay obligations contained in supply arrangementsstored value cards, and (iii) depository, cash management and treasury services and other similar services (including, without limitation, controlled disbursement, automated clearinghouse transactions, return items, overdrafts and interstate depository network services), in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements case in the ordinary course of business;
(m) Indebtedness guaranties in the ordinary course of business of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations obligations of suppliers, customers, franchisees and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater licensees of $33,000,000 and 0.75% of Consolidated Total Assets a Credit Party or OZ Subsidiary, as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenantsapplicable;
(n) Indebtedness of any Person that becomes a Restricted an OZ Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date, and extensions, renewals, refinancings, refundings and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof except by an amount equal to unpaid accrued interest, premium thereon and any original issue discount pursuant to the terms thereof, plus other reasonable amounts paid, and fees and expenses reasonably incurred in connection with such extension, renewal, replacement, refunding or refinancing; provided that (i) such Indebtedness (A) existed exists at the time such Person became a Restricted becomes an OZ Subsidiary or the assets subject to such Indebtedness were acquired and (B) was is not created in contemplation of or incurred in anticipation of such acquisition or investment or connection with such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) an OZ Subsidiary; and (ii) the Borrower such Person becoming an OZ Subsidiary is in pro forma compliance with the Financial Covenantspermitted under this Agreement;
(o) Indebtedness consisting of promissory notes issued by the Borrower any Credit Party or any Restricted OZ Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) incurred to finance the purchase acquisition, construction, development or redemption improvement of any fixed or capital assets, including Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness Lease Obligations in respect thereof; provided that:
(i) the an aggregate principal amount not to exceed at any time $25,000,000, and extensions, renewals, refinancings, refundings and replacements of any such Indebtedness does that do not exceed increase the outstanding principal amount of the Indebtedness being refinanced, refunded or replaced, thereof except by (A) an amount equal to unpaid accrued interest, penalties premium thereon and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, any original issue discount or initial yield payments) pursuant to the terms thereof, plus other reasonable amounts paid, and fees and expenses reasonably incurred in connection with the relevant refinancingsuch extension, renewal, replacement, 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), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one yearrefinancing; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by prior to or within 180 days after such acquisition or the obligor completion of such construction, development or obligors improvement;
(p) Indebtedness incurred in respect of connection with a Permitted Securitization; provided, that recourse to Credit Parties and OZ Subsidiaries shall be limited to (i) the Indebtedness being refinancedassets and rights of, refunded and Equity Interests in, Qualifying Risk Retention Subsidiaries or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, Alternate Investment Subsidiaries or (yii) if not contractually subordinated unsecured Indebtedness of up to the Obligations $50,000,000 in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis aggregate principal amount with respect to the remaining Obligations hereunder, recourse to Credit Parties or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted OZ Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b)Non-SPVS;
(q) [reserved]security deposits and obligations under letters of credit and letters of guaranty supporting leases and other obligations of any Credit Party or any OZ Subsidiary, in each case entered into in the ordinary course of business;
(r) Indebtedness of the Borrower and/or Credit Parties or any Restricted OZ Subsidiaries in the nature of any contingent obligations of any Credit Party or any OZ Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than to issue, make or apply the proceeds of any Net Proceeds received from capital calls in its capacity as the sale general partner, manager, managing member (or the equivalent of Capital Stock to, or contributions from, any of the Borrower foregoing) of any OZ Fund or any of its Restricted Subsidiaries and their respective Subsidiaries, either now existing or newly created, to or in respect of any Indebtedness of such Persons or (ii) other than in respect of a pledge of such Credit Party’s or such OZ Subsidiary’s Equity Interests in any OZ Fund or any of their respective Subsidiaries for the Available Excluded Contribution Amountpurpose of securing Indebtedness of such OZ Fund or any of their respective Subsidiaries, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds either now existing or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”)newly created;
(s) Indebtedness obligations in respect of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not Interest Rate Agreement or Currency Agreement entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and not for speculative purposes, and obligations to repurchase securities under customary repurchase agreements, provided that the securities subject to such repurchase agreements shall have a value no less than the amount that would be customary and prudent to support such repurchase obligations;
(iit) deferred compensation or other similar arrangements Indebtedness consisting of the financing of insurance premiums in connection with the Transactions, any Permitted Acquisition or any other Investment permitted herebyordinary course of business;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not owed to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, credit or bank guaranties, surety bonds, performance bonds or guaranties and similar instruments with respect to such Indebtednessfor the benefit of) incurred by the Borrower 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 payPerson providing workers’ compensation, health, disability or other employee benefits (whether to current or former officers, employees, directors, managers, partners, managing members, principals and other personnel (or to current or former officers, employees, directors, managers, partners, managing members, principals and other personnel of such Person’s general partner or equivalent)) or property, casualty or liability insurance or self-insurance in respect of such items, or other Indebtedness with respect to reimbursement-type obligations regarding workers workers’ compensation claims, health, disability or other employee benefits (whether current or former) or property, casualty or liability insurance, in each case in the ordinary course of business;
(bbi) Indebtedness of Qualifying Risk Retention Subsidiaries that is non-recourse to the Credit Parties (other than the pledge of any Restricted Equity Interests of Qualifying Risk Retention Subsidiaries) incurred to finance the purchase or holding of Risk Retention Interests (including, without limitation, any guarantees made by any Qualifying Risk Retention Subsidiary) and (ii) to the extent constituting Indebtedness, the pledge of any Equity Interests in any Qualifying Risk Retention Subsidiary or OZ Fund to secure Indebtedness permitted under clause (v)(i), in each case of the foregoing clauses (i) and (ii), incurred in the ordinary course of business;
(i) Indebtedness of Alternate Investment Subsidiaries (but excluding any guaranties by Alternate Investment Subsidiaries of Indebtedness of other Persons) that is non-recourse to the Credit Parties (other than the pledge of any Equity Interests of Alternate Investment Subsidiaries) incurred to finance the purchase or holding of AIS Investments constituting side-by-side investments in OZ Funds or other investment vehicles that, in each case, (x) are primarily managed for the account of third parties and (y) except in the case of investments in warehouse facilities, ramp-up vehicles or similar arrangements in the ordinary course of business (which, in the case of AIS Investments in warehouse facilities, ramp-up vehicles or similar arrangements in OZ Funds that do not constitute OZ CLOs (“Non-CLO AIS Investments”), Indebtedness of Alternate Investment Subsidiaries in respect of such Non-CLO AIS Investments shall be limited to $50,000,000 outstanding at any time that third party investments in such Non-CLO AIS Investment are not otherwise compliant with this clause (y)), the aggregate amount invested by Alternate Investment Subsidiaries in any particular OZ Fund or investment vehicle does not exceed 10% of the aggregate amount invested by all parties in such OZ Fund or investment vehicle, taking into account all investments in such OZ Fund or investment vehicle and after giving effect to all third-party investments and the funding of all third-party commitments, and any extensions, renewals, refinancings, refundings and replacements of any such Indebtedness, and (ii) to the extent constituting Indebtedness, the pledge of any Equity Interests in any Alternate Investment Subsidiary, OZ Fund or other investment vehicle to secure Indebtedness permitted under clause (w)(i), in each case of the foregoing clauses (i) and (ii), incurred in the ordinary course of business;
(x) Indebtedness under the Senior Secured Credit Agreement, in an aggregate principal amount at any time outstanding not to exceed the amounts referred to in clauses (x) and (y) of the definition of “Senior Cap”; and
(y) (i) guaranties by any Credit Party, or guaranties by any OZ Subsidiary of Indebtedness of any other OZ Subsidiary that is not a Loan Party Credit Party, in each case with respect to Indebtedness permitted under any Asset Financing Facility or CRE Financing clauses (a) through (u) (in the case of clause (p), subject to the limitations set forth therein) and (x) of this Section 6.01, and (ii) extensions, renewals, refinancings, refundings and replacements of Indebtedness permitted under clauses (b) through (w) that, unless such an increase would otherwise be permitted by such clause, do not increase the outstanding principal amount thereof except by an amount equal to unpaid accrued interest, premium thereon and any guarantees original issue discount pursuant to the terms thereof, plus other reasonable amounts paid, and co-borrower obligations of the Borrowerfees and expenses reasonably incurred in connection with such extension, any Restricted Subsidiary that is a Loanrenewal, replacement, refunding or refinancing.
Appears in 2 contracts
Sources: Governance Agreement (Och-Ziff Capital Management Group LLC), Senior Subordinated Term Loan and Guaranty Agreement (Och-Ziff Capital Management Group LLC)
Indebtedness. The Borrower shall notNeither the Parent, the Borrower, nor shall any Property Subsidiary (at such time as it permit any owns an Acceptable Unencumbered Property in the Unencumbered Pool) shall, without the prior written consent of its Restricted Subsidiaries to, directly or indirectlythe Required Lenders, create, incur, assume assume, guarantee or be or remain liable, contingently or otherwise become or remain liable with respect to any IndebtednessIndebtedness on a recourse basis, except:
: (a) Indebtedness of the Obligations (including Parent or the Borrower under this Agreement, any Additional Bond Facility or the Term Loans);
Facility; (b) Indebtedness of the Borrower to any Restricted Subsidiary and/or of any Restricted Subsidiary to Parent, the Borrower and/or any or a Subsidiary (other Restricted Subsidiarythan a Property Subsidiary at such time as it owns an Acceptable Unencumbered Property in the Unencumbered Pool) which does not violate the provisions of Section 5.02; provided, that any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note);
(c) [reserved];
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 this Agreement; and (d) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior respect to the Closing Date and not Borrower, the Parent or a Subsidiary (other than a Property Subsidiary at such time as it owns an Acceptable Unencumbered Property in contemplation thereof the Unencumbered Pool), Indebtedness whose recourse is solely for so-called “bad-boy” acts, including without limitation, (i) failure to account for a tenant’s security deposits, if any, for rent or any other purchase payment collected by a borrower from a tenant under the lease, all in accordance with the provisions of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
(f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of businessapplicable loan documents, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets fraud or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(h) guarantees a material misrepresentation made by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existingGuarantor, or pursuant to commitments existing, on the Closing Date and, to the extent holders of beneficial or ownership interests in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former directorGuarantor, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to 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 financing evidenced by the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one yearloan documents; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
any 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) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication misappropriation or misapplication of any amounts outstanding in reliance on the relevant clause,
insurance proceeds or condemnation awards relating to any Real Property; (v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only voluntary or involuntary bankruptcy by Permitted Liens at the time of such refinancing, refunding Borrower or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
any Guarantor; and (vi) in the case of Replacement Notes, (Aany environmental matter(s) such Indebtedness affecting any Real Property which is pari passu introduced or junior in right of payment and secured caused by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of 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 Guarantor or any other Investment permitted hereby;
(u) Indebtedness holder of the a beneficial or ownership interest in Borrower and/or or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a LoanGuarantor.
Appears in 2 contracts
Sources: Credit Agreement (Education Realty Operating Partnership L P), Credit Agreement (Education Realty Operating Partnership L P)
Indebtedness. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly, createCreate, incur, assume or otherwise become suffer to exist any Indebtedness or remain liable with respect to issue any IndebtednessDisqualified Equity Interest, except:
(a) Indebtedness under the Obligations Loan Documents (including including, for avoidance of doubt, Indebtedness arising pursuant to Section 2.18 and under any Additional Term LoansSupplemental Facility);
(b) 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 any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to outstanding on the Obligations of such Loan Party Closing Date and listed on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note)Schedule 8.01;
(c) [reserved]any Subordinated Debt owed to a non-Affiliate, so long as such Subordinated Debt is (i) unsecured and subject to a Subordination Agreement, and (ii) not owed to any Loan Party or Subsidiary or Affiliate thereof (other than unsecured Subordinated Debt subject to the Master Intercompany Note that is owed by a Borrower to another Borrower); provided further that the aggregate principal amount of Subordinated Debt permitted under this clause (c) shall not exceed $1,000,000;
(d) Guarantees of any Loan Party in respect of Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition otherwise permitted hereunder or consummated prior of any Borrower; provided that any Guarantee of Indebtedness permitted hereunder that is subordinated to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing Obligations shall be subordinated to the performance of Obligations on substantially the Borrower or any same terms as such Restricted Subsidiary pursuant to any such agreementguaranteed Indebtedness;
(e) Indebtedness Credit Product Obligations consisting of the obligations (contingent or otherwise) existing or arising under any Swap Contract entered into directly by a Borrower and/or any Restricted Subsidiary with a non-Affiliate, provided that (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds such obligations are (or other similar obligations incurred were) entered into by such Person in the ordinary course Ordinary Course of business Business for the purpose of directly mitigating risks reasonably anticipated by such Person associated with liabilities, commitments, investments, assets, cash flows of or property held by, or changes in the value of securities issued by, such Person, and not for purposes of speculation or taking a “market view”, and (ii) in respect such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party; provided further that the Swap Termination Value of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing itemsall Swap Contracts permitted under clause (e) shall not exceed $1,000,000;
(f) Indebtedness owed to a non-Affiliate arising in the Ordinary Course of the Borrower and/or any Restricted Subsidiary Business in connection with treasury management and commercial credit card, merchant card and purchase or procurement card services including Treasury Management and Other Services;
(g) Indebtedness owed to a non-Affiliate in respect of commercial credit cardsCapital Leases, stored value cardsSynthetic Lease Obligations and purchase money obligations for Equipment within the limitations set forth in Section 8.02(i); provided, purchasing cardshowever, treasury management services, netting services, overdraft protections, check drawing services, automated payment services that the aggregate amount of all such Indebtedness of all Loan Parties and their Subsidiaries at any one time outstanding shall not exceed $5,000,000;
(including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements h) the endorsement of negotiable instruments for deposit or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance collection or similar programstransactions in the Ordinary Course of Business;
(i) guarantees by the Borrower and/or Indebtedness in respect of any Restricted Subsidiary of the obligations of suppliersbankers’ acceptances, customers and licensees in the ordinary course of businessbank guarantees, (ii) Indebtedness incurred or similar facilities entered into with a non-Affiliate in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankersworkers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(h) guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (x) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (compensation and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower and/or any Restricted Subsidiary in respect of workers compensation casualty claims, unemployment insurance (including premiums related thereto), other types of social security, pension obligations, vacation pay, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers workers’ compensation and other casualty claims;
(bbj) Indebtedness owed to a non-Affiliate incurred or arising in the Ordinary Course of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing Business (and any not in connection with the borrowing of money) in respect of (i) obligations 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; (ii) performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees and cosimilar instruments or obligations; and (iii) obligations to pay insurance premiums;
(k) Indebtedness representing deferred compensation to employees, consultants or independent contractors of non-borrower Affiliates incurred in the Ordinary Course of Business;
(l) surety bonds, deposits and similar obligations permitted under Section 8.02(f);
(m) Refinancing Indebtedness; and
(n) other Indebtedness owed to a non-Affiliate, in an aggregate principal amount of the Borrower, up to $5,000,000 at any Restricted Subsidiary that is a Loantime outstanding.
Appears in 2 contracts
Sources: Credit Agreement (Duluth Holdings Inc.), Credit Agreement (Duluth Holdings Inc.)
Indebtedness. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectlyIncur, create, incur, assume or otherwise become or remain liable with respect permit to exist any Indebtedness, except:
(a) (i) Indebtedness existing on the Obligations Closing Date (including other than any Additional Term LoansIndebtedness of Parent or any Subsidiary owed to Parent or any Subsidiary); provided that any Indebtedness that is in excess of $2,000,000 individually or $10,000,000 in the aggregate shall be permitted under this clause (a)(i) only if such Indebtedness is set forth on Schedule 6.01 and (ii) any Permitted Refinancing Indebtedness incurred to Refinance Indebtedness permitted by the foregoing subclause (i);
(b) Indebtedness of under the Borrower to any Restricted Subsidiary and/or of any Restricted Subsidiary to the Borrower and/or any other Restricted Subsidiary; provided, that any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note)Documents;
(c) [reserved]Indebtedness (if any) deemed to exist with respect to Swap Agreements not entered into for speculative purposes and under Cash Management Agreements;
(d) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations owed to (including contingent earn-out obligations) incurred obligations in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof or any other purchase respect of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, credit or bank guarantees, surety bonds, performance bonds guarantees or similar instruments securing for the performance of the Borrower benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to Parent or any such Restricted Subsidiary Subsidiary, pursuant to any reimbursement or indemnification obligations to such agreementperson, 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 30 days following such incurrence;
(e) Indebtedness of the Borrower and/or Parent owed to any Restricted Subsidiary (i) pursuant and of any Subsidiary owed to tendersParent or any other Subsidiary; provided, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or that other similar obligations incurred than in the ordinary course case of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
(f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of Parent and the Subsidiaries, (i) any Indebtedness owed by a Loan Party to a Subsidiary that is not a Loan Party shall be evidenced by (x) the Global Intercompany Note or (y) another promissory note containing substantially similar subordination provisions and (ii) any Indebtedness owed by a Subsidiary that is not a Loan Party to a Loan Party may be evidenced by the Global Intercompany Note;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case outstanding on the Closing Date or otherwise provided in the ordinary course of business (whether or not consistent with past practices) of Parent and the Subsidiaries, 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;
(A) Indebtedness of any Loan Party and Acquired Indebtedness of Parent or any Subsidiary; provided that (i) no Event of Default shall have occurred or be continuing or would result from the incurrence or existence of such additional Indebtedness or from the application of proceeds thereof, (ii) the Total Net Leverage Ratio shall not exceed 5.00:1.00 calculated on a Pro Forma Basis as of the Borrower and/or last day of the most recently ended Test Period, (iii) other than in the case of Acquired Indebtedness, the final maturity date of such Indebtedness shall be no earlier than six months following the then Latest Maturity Date (other than customary offers to repurchase upon a change of control, asset sale or event of loss (so long as, in the case of a change of control offer to purchase provision, a change of control would not be triggered thereunder unless a Change of Control is also triggered hereunder, and in the case of an asset sale or event of loss offer to purchase provision, the net proceeds of any Restricted asset sale are permitted to be applied to the prepayment of the Loans first or, in the case of Indebtedness secured by Other First Liens, on a not less than ratable basis than such Indebtedness) and customary acceleration rights after an event of default), (iv) other than in the case of Acquired Indebtedness, the Weighted Average Life to Maturity of such Indebtedness shall not be shorter than the remaining Weighted Average Life to Maturity of the existing Term B Loans and (v) other than in the case of Acquired Indebtedness, the covenants, events of default, guarantees and other terms of such Indebtedness (other than pricing and redemption premiums), taken as a whole, shall not be more restrictive to Parent and the Subsidiaries than those set forth in this Agreement; provided that a certificate of the Chief Financial Officer of Parent delivered to the Administrative Agent in good faith at least three Business Days (or such shorter period as the Administrative Agent may reasonably agree) prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that Parent has determined in good faith that such terms and conditions satisfy the requirement in this subclause (v) shall be conclusive evidence that such terms and conditions satisfy the requirement in this subclause (v) and (B) Permitted Refinancing Indebtedness in respect of Indebtedness permitted by the foregoing clause (A);
(i) mortgage financings and other purchase money Indebtedness incurred by Parent or any Subsidiary prior to pay or within 270 days after the deferred acquisition, lease, construction, repair, replacement or improvement of the respective property (real or personal, and whether through the direct purchase price of goodsproperty or the Equity Interests of any person owning such property) permitted under this Agreement in order to finance such acquisition, serviceslease, CRE Finance Assets construction, repair, replacement or Real Estate Investments improvement and Capital Lease Obligations of Parent or progress payments any Subsidiary, in each case, so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) the aggregate principal amount of such Indebtedness at any time outstanding does not exceed the greater of (X) $75,000,000 and (Y) at the time of any incurrence under this paragraph (i), 37.5% of the EBITDA on a Pro Forma Basis for the Test Period most recently ended;
(j) other Indebtedness of Parent or any Subsidiary in an aggregate principal amount at any time outstanding that does not exceed the greater of (X) $100,000,000 and (Y) at the time of any incurrence under this paragraph (j), 50% of the EBITDA on a Pro Forma Basis for the Test Period most recently ended;
(k) Guarantees (i) by any Loan Party of any Indebtedness of any other Loan Party permitted to be incurred under this Agreement, (ii) by any Loan Party of Indebtedness otherwise permitted hereunder of any Subsidiary that is not a Loan Party to the extent such Guarantees are permitted by Section 6.04(b)(iii), and (iii) by any Subsidiary that is not a Loan Party of Indebtedness of another Subsidiary that is not a Loan Party; provided, that Guarantees by any Loan Party under this paragraph (k) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be subordinated to the Obligations to at least the same extent such other Indebtedness is so subordinated;
(l) Indebtedness arising from agreements of Parent or any Subsidiary providing for indemnification, adjustment of purchase or acquisition price, earnouts or similar obligations, in each case, incurred or assumed in connection with any Permitted Business Acquisition or the disposition of any business, assets or a Subsidiary not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such assetsbusiness, goods and services and assets or a Subsidiary for the purpose of financing such acquisition; provided, that in respect of the disposition of any business, assets or a Subsidiary, such Indebtedness shall not exceed the proceeds of such disposition;
(iiim) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payablesguarantees, warehouse receipts or similar facilities entered into instruments issued to support performance obligations and trade letters of credit (other than obligations in respect of other Indebtedness) in the ordinary course of businessbusiness or consistent with past practice or industry practice;
(h) guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;
(in) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or business;
(iiio) Indebtedness of Subsidiaries that are not Loan Parties in an aggregate amount not to exceed at any time outstanding the greater of (X) $40,000,000 and (Y) at the time of any incurrence under this paragraph (o), 20% of EBITDA on a Pro Forma Basis for the Test Period most recently ended;
(p) unsecured Indebtedness constituting obligations of Parent or any Subsidiary to reacquire assets pay the deferred purchase price of goods or inventory services or progress payments in connection with customer financing such goods and services; provided, that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 90 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Swap Agreements;
(i) secured Indebtedness of Subsidiary Loan Parties under local lines of credit in the ordinary course of business and consistent with past practices and (ii) Indebtedness of Parent and its Subsidiaries incurred in the ordinary course of business under overdraft facilities (including, but not limited to, intraday, ACH and purchasing card/T&E services), in each case, extended by one or more financial institutions reasonably acceptable to the Administrative Agent or by one or more of the Lenders or L/C Issuers or their Affiliates and (in each case) established for Parent’s and the Subsidiaries’ ordinary course of operations;
(r) (i) Specified Prepayment Debt the Net Proceeds of which are applied solely to the prepayment of Loans in accordance with Section 2.12(b) and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(s) Indebtedness consisting of Indebtedness issued by Parent or any Subsidiary to current or former officers, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of Parent permitted by Section 6.06;
(t) Indebtedness consisting of obligations of Parent or any Subsidiary to any of their employees under deferred compensation or other similar arrangements incurred by such person in connection with Permitted Business Acquisitions or any other Investment permitted hereunder or in the ordinary course of business;
(mu) Indebtedness of Parent or any Subsidiary to any joint venture (regardless of the Borrower and/or any Restricted form of legal entity) that is not a Subsidiary arising in the ordinary course of business in connection with the cash management operations (including with respect to Capitalized Lease Obligations intercompany self insurance arrangements) of Parent and purchase money Indebtedness the Subsidiaries;
(i) Incremental Equivalent Debt in an aggregate outstanding principal amount at any time outstanding not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Periodexceed, so long as the Borrower is in pro forma compliance together with the Financial Covenants;
(n) Indebtedness aggregate amount of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder Incremental Commitments made after the Closing Date; provided that (i) such Indebtedness (A) existed at , the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) Incremental Amount and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness incurred pursuant to subclause (o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(ai);
(pw) Indebtedness refinancingof joint ventures and/or, refunding without duplication, Indebtedness incurred on behalf of, or replacing representing Guarantees of Indebtedness of, joint ventures, of Parent or any Indebtedness permitted under clauses Subsidiary not in excess, at any one time outstanding, of the greater of (aX) $100,000,000 and (Y) at the time of any incurrence pursuant to this paragraph (w), 50% of the EBITDA on a Pro Forma Basis for the Test Period most recently ended;
(i), x) Settlement Indebtedness;
(m), (n), (r), (uy) Customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business; and
(z) of this Section 6.01 all premium (“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 refinancedif any, 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 expenses, defeasance costs, interest (including post-petition interest), fees, commissions expenses, charges and expenses additional or contingent interest on obligations described in paragraphs (including upfront fees, original issue discount or initial yield paymentsa) 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 through (y) if such additional Indebtedness is securedabove. For purposes of determining compliance with this Section 6.01, the Lien securing such amount of any Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) denominated in any currency other than Dollars shall be calculated based on customary currency exchange rates in effect, in the case of Refinancing such Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities incurred on or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject prior to the requirements of this clause (ii))Closing Date, such Indebtedness has (A) subject to on the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (Closing Date and, in the case of revolving Indebtednesssuch Indebtedness incurred after the Closing Date, does not require mandatory commitment reductions, on the date that such Indebtedness was incurred; provided that if any, prior to) the earlier of such Indebtedness is incurred to refinance other Indebtedness denominated in a currency other than Dollars (x) the Initial Term Loan Maturity Date and (y) the final maturity of or in a different currency from the Indebtedness being refinanced), refunded or replaced and such refinancing would cause the applicable Dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such Dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed (Bi) subject to the Permitted Earlier Maturity outstanding principal amount of such Indebtedness Exception being refinanced plus (ii) the aggregate amount of fees, underwriting discounts, premiums (including tender premiums), defeasance costs and other than costs and expenses incurred in connection with such refinancing. For purposes of the foregoing, with respect to revolving Indebtedness, such Indebtedness Parent may elect to treat the full committed amount to be incurred at the date the commitment becomes effective (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) Closing Date if 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, effective date was prior to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(kClosing Date)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a Loan.
Appears in 2 contracts
Sources: Credit Agreement (EVERTEC, Inc.), Credit Agreement (EVERTEC, Inc.)
Indebtedness. The Borrower shall Company will not, nor shall it and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create, incur, assume or otherwise become or remain liable with respect permit to exist any Indebtedness, except:
(a) the Obligations (including and any Additional Term Loans)other Indebtedness created under the Loan Documents;
(b) Indebtedness existing on the date hereof and set forth in Schedule 6.01 and extensions, renewals and replacements of any such Indebtedness with Indebtedness of a similar type that does not increase the outstanding principal amount thereof;
(c) Indebtedness of the Borrower Company to any Restricted Subsidiary and/or and of any Restricted Subsidiary to the Borrower and/or Company or any other Restricted Subsidiary; provided, Subsidiary (provided that any all such Indebtedness in an aggregate amount in excess of the Dollar Amount of Ten Million Dollars ($10,000,000) of any Loan Party owed owing to any Restricted Subsidiary that is not a Loan Party must shall be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany NoteAgent);
(c) [reserved];
(d) Guarantees by the Company of Indebtedness arising from of any agreement providing for indemnification, adjustment Subsidiary and by any Subsidiary 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 Indebtedness of the Closing Date and not in contemplation thereof Company or any other purchase Subsidiary (provided that any such Guarantee provided by a Loan Party shall be made only to the extent that such Loan Party is otherwise permitted to incur such Indebtedness directly) pursuant to the other provisions of assets or Capital Stockthis Section 6.01, and provided that any such Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower any Subsidiary or any such Restricted Guarantee of any Subsidiary that is not a Loan Party shall be made pursuant to any such agreementthe other provisions of this Section 6.01;
(e) Indebtedness of the Borrower and/or Company or any Restricted Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets (including any replacement thereof, and additions and accessions to such asset and the proceeds and products thereof (and any customary security deposits made in connection therewith)) 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) pursuant such Indebtedness is incurred prior to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return or within ninety (90) days after such acquisition or the completion of money bonds such construction or other similar obligations incurred in the ordinary course of business improvement and (ii) in respect the aggregate principal amount of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support Indebtedness permitted by this clause (e) shall not exceed $100,000,000 at any of the foregoing itemstime outstanding;
(f) Indebtedness of the Borrower and/or Company or any Restricted Subsidiary as an account party in respect of commercial letters of credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance bankers’ acceptances or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliersinstruments; provided, customers and licensees in the ordinary course of businesshowever, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, credit (other than letters of credit issued under the Revolving Loan Documents) or bankers’ acceptances, bank guaranties acceptances or similar instruments supporting trade payablesshall not exceed an aggregate principal amount of $400,000,000 at any time;
(g) Indebtedness of any Subsidiary that is not a Loan Party and Indebtedness of the Company or any Subsidiary secured by a Lien on any asset of the Company or any Subsidiary; provided that the aggregate outstanding principal amount of Indebtedness permitted by this clause (g) shall not exceed, warehouse receipts at the time of the incurrence thereof, 10% of Consolidated Total Assets (determined as of the last day of the most recent fiscal quarter for which financial statements shall have been delivered pursuant to Section 5.01(a) or similar facilities entered into Section 5.01(b) (or, prior to the delivery of any such financial statements, the last day of the last fiscal quarter included in the financial statements referred to in Section 3.04(a));
(h) unsecured Indebtedness of any Loan Party in an aggregate principal amount not exceeding $50,000,000 at any time outstanding; provided that no such Dollar limitation shall apply to any incurrence of such Indebtedness (and, for the avoidance of doubt, no such unsecured Indebtedness so incurred shall be counted against such Dollar limitation) so long as at the time of the incurrence thereof and after giving effect thereto (on a Pro Forma Basis) (i) no Default or Event of Default shall have occurred and be continuing and (ii) the Company shall be in compliance with the financial covenants set forth in Section 6.10;
(i) 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;
(h) guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;
(ij) Indebtedness of the Borrower and/or Company or any Restricted Subsidiary existing, or pursuant to commitments existing, on (including obligations in respect of letters of credit for the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) Indebtedness benefit of the Borrower and/or any Restricted Subsidiary consisting issuer thereof) in respect of performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees and similar obligations owing under incentive(other than in respect of other Indebtedness), supply, license or similar agreements entered into in each case provided in the ordinary course of business;
(k) Indebtedness in respect of Swap Agreements permitted by Section 6.05;
(l) Indebtedness arising in connection with customary cash management services and from the honoring by a bank or financial institution of a check, draft or similar instrument drawn against insufficient funds, in each case in the ordinary course of business, provided that such Indebtedness is extinguished within five Business Days after its incurrence;
(m) Indebtedness representing deferred compensation to employees of the Company or any Subsidiary incurred in the ordinary course of business;
(n) Indebtedness consisting of promissory notes issued by the Company or any Subsidiary to current or former officers, directors or employees or to their respective estates, spouses or former spouses, in each case to finance the purchase or redemption of Equity Interests (or any option, warrant or other right to acquire any Equity Interests) permitted by Section 6.07;
(o) customer deposits and advance payments received by the Company or any Subsidiary in the ordinary course of business from customers for goods or services purchased in the ordinary course of business;
(p) Indebtedness of the Borrower and/or Company or any Restricted Subsidiary consisting of (iA) Indebtedness owed to any insurance provider for the financing of insurance premiums so long as such Indebtedness shall not be in excess of the amount of such premiums, and shall be incurred only to defer the cost of such premiums, for the annual period in which such Indebtedness is incurred or (iiB) 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 case incurred in the ordinary course of business;; and
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(nq) Indebtedness of any Person that becomes a Restricted Subsidiary after the date hereof or Indebtedness assumed in connection is merged with an acquisition and into the Company or any other similar investment permitted hereunder after the Closing Date; Subsidiary, provided that (ix) such Indebtedness (A) existed exists at the time such Person became becomes a Restricted Subsidiary or is merged with and into the assets subject to Company or such Indebtedness were acquired Subsidiary, as the case may be, and (B) was is not created or incurred in anticipation contemplation of such acquisition or investment or such Person becoming a Restricted Subsidiary or being merged with and into the Company or such Subsidiary, as the case may be, (except as otherwise permitted herein) and (iiy) the Borrower is aggregate principal amount of Indebtedness outstanding under this clause (q) shall not exceed $100,000,000 in pro forma compliance with the Financial Covenants;
(o) aggregate and extensions, renewals, replacements and refinancings of any such Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) so long as the principal amount (or accreted value, if applicable) of such Indebtedness extensions, renewals, replacements and refinancings does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness being refinancedextended, refunded renewed, replaced or replaced, except refinanced (plus any accrued but unpaid interest and redemption premium payable by (A) an amount equal to unpaid accrued interest, penalties the terms of such Indebtedness thereon and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable amounts paid, and customary fees, commissions reasonable fees and expenses (including upfront feesincurred, original issue discount or initial yield payments) incurred in connection with the relevant such extension, renewal, replacement or refinancing; provided, refunding or replacement and the related refinancing transactionfurther that, (B) an amount equal immediately after giving effect to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred such incurrence of Indebtedness 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 (iq), (m), (n), (r) no Event of Default exists and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall the covenants in Section 6.10 would be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral met on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a LoanPro Forma Basis.
Appears in 2 contracts
Sources: Term Loan Agreement (Bruker Corp), Term Loan Agreement (Bruker Corp)
Indebtedness. The Borrower shall Company will not, nor shall it and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create, incur, assume or otherwise become or remain liable with respect permit to exist any Indebtedness, except:
(a) the Obligations (including and any Additional Term Loans)other Indebtedness created under the Loan Documents;
(b) Indebtedness existing on the Effective Date and set forth in Schedule 6.01 and extensions, renewals and replacements of any such Indebtedness with Indebtedness of a similar type that does not, for purposes of this clause (b), increase the outstanding principal amount thereof;
(c) Indebtedness of the Borrower Company to any Restricted Subsidiary and/or and of any Restricted Subsidiary to the Borrower and/or Company or any other Restricted Subsidiary; provided, provided that any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must to any Loan Party shall be expressly subordinated subject to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Notelimitations set forth in Section 6.04(c);
(c) [reserved];
(d) Guarantees by the Company of Indebtedness arising from of any agreement providing for indemnification, adjustment Subsidiary and by any Subsidiary 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 Indebtedness of the Closing Date and not in contemplation thereof Company or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreementSubsidiary;
(e) Indebtedness of the Borrower and/or Company or any Restricted Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals and replacements of any such Indebtedness that do not, for purposes of this clause (e), increase the outstanding principal amount thereof; provided that (i) pursuant such Indebtedness is incurred prior to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return or within 90 days after such acquisition or the completion of money bonds such construction or other similar obligations incurred in the ordinary course of business improvement and (ii) in respect the aggregate principal amount of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support Indebtedness permitted by this clause (e) shall not exceed $10,000,000 at any of the foregoing itemstime outstanding;
(f) any Indebtedness of a Person prior to the acquisition thereof by the Company or any Subsidiary; provided that (i) such Indebtedness is not incurred in contemplation of or in connection with such acquisition or such Person becoming a Subsidiary, as the case may be, (ii) such Indebtedness shall not have recourse to any other property or assets of the Company or any Subsidiary and (iii) any extensions, renewals and replacements thereof that do not increase the outstanding principal amount thereof;
(g) Indebtedness of the Borrower and/or Company or any Restricted Subsidiary as an account party in respect of commercial credit cardstrade letters of credit;
(h) Indebtedness of Foreign Subsidiaries in an aggregate principal amount, 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 serviceswhen aggregated with any Indebtedness outstanding under Section 6.01(q), employee credit card programs, cash pooling services and any arrangements or services similar to any not in excess of 10% of Consolidated Total Assets (as reflected in the most recent consolidated balance sheet of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programsCompany delivered pursuant to Section 5.01) at any time outstanding;
(i) guarantees Indebtedness under Swap Agreements permitted by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, Section 6.05;
(iij) Indebtedness incurred in arising from the ordinary course endorsement of business in respect items for deposit or collection of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into commercial paper received in the ordinary course of business;
(h) guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) Indebtedness of the Borrower and/or Company or any Restricted Subsidiary consisting arising from the honoring by a bank or other financial institution of obligations owing under incentivea check, supply, license draft or similar agreements entered into instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided that such Indebtedness is repaid within two (2) Business Days after being incurred;
(l) Indebtedness obligations owed to customers of the Borrower and/or Company or any Restricted Subsidiary consisting arising from the receipt 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 advance payments from a customer financing arrangements in the ordinary course of business;
(m) unsecured Indebtedness (including subordinated Indebtedness the payment of which is subordinated to the payment of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as obligations of the last day Company and the Subsidiaries, as applicable, under the Loan Documents pursuant to documentation, and subject to terms and conditions, acceptable to the Administrative Agent in its discretion) of the most recently ended Test Period, so long as the Borrower is in Company or any Subsidiary; provided that (i) both immediately prior to and after giving effect (including pro forma compliance with effect) thereto, no Default or Event of Default shall exist or would result therefrom, (ii) such Indebtedness matures after, and does not require any scheduled amortization or other scheduled payments of principal prior to, the Financial Covenantsdate that is 181 days after the Maturity Date (it being understood that any provision requiring an offer to purchase such Indebtedness as a result of change of control or asset sale shall not violate the foregoing restriction), (iii) such Indebtedness is not guaranteed by any Subsidiary of the Company other than the Subsidiary Guarantors (which guarantees, if such Indebtedness is subordinated, shall be expressly subordinated to the Secured Obligations on terms not less favorable to the Lenders than the subordination terms of such subordinated Indebtedness) and (iv) the covenants applicable to such Indebtedness are not more onerous or more restrictive in any material respect (taken as a whole) than the applicable covenants set forth in this Agreement;
(n) Indebtedness of the Company or any Person Subsidiary as an account party in respect of trust account funds or letters of credit established or issued for the account of the Company or such Subsidiary, as the case may be, that becomes a Restricted Subsidiary are established or Indebtedness assumed issued in order to provide security for workers’ compensation claims or pension plans, payment obligations in connection with an acquisition self-insurance, reclamation or any other closure liabilities or similar investment permitted hereunder after requirements, in each case in 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 ordinary course of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenantsbusiness;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder obligations of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower Company or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (x) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) 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 arising in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loansperformance bonds and completion, (A) such Indebtednessguarantee, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment surety and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stocksimilar bonds, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary case obtained in the ordinary course of business and pursuant to customary terms in the utility industry to support statutory and contractual obligations (iiother than Indebtedness) deferred compensation arising in the ordinary course of business; provided that the amount of any such obligations shall not exceed the maximum amount required pursuant to the applicable statutory law or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted herebycontract;
(up) Indebtedness under Permitted Pro Rata Secured Financings; and
(q) other Indebtedness of the Borrower and/or any Restricted Subsidiary in an Company and Domestic Subsidiaries; provided that the aggregate outstanding principal amount of Indebtedness of Domestic Subsidiaries which are not to Subsidiary Guarantors permitted by this clause (q), when aggregated with any Indebtedness outstanding under Section 6.01(h), shall not exceed the sum of (i) the greater of $140,000,000 and 3.210% of Consolidated Total Assets (as reflected in the most recent consolidated balance sheet of the last day of the most recently ended Test Period, plus (iiCompany delivered pursuant to Section 5.01) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a Loantime outstanding.
Appears in 2 contracts
Sources: Credit Agreement (Tennant Co), Credit Agreement (Tennant Co)
Indebtedness. The Borrower shall notBorrow money, nor shall it permit any issue evidences of its Restricted Subsidiaries to, directly indebtedness or indirectly, create, incur, assume or otherwise become or remain liable with respect suffer to any Indebtednessexist indebtedness in addition to the Notes (including without limitation as indebtedness capitalized lease obligations), except:
except (a) the Obligations (including any Additional Term Loans);
(b) 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 any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note);
(c) [reserved];
(d) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) indebtedness incurred in connection with the acquisition of machinery and equipment, which indebtedness is secured by conditional sales contracts, title retention agreements, capitalized leases or other purchase money security interests, provided that the indebtedness secured by any Disposition permitted hereundersuch security interest shall not exceed the fair market value of the machinery or equipment acquired subject thereto and such security interest shall not encumber any property of the Company or any Subsidiary other than the machinery or equipment acquired subject thereto (or the refinancing of any such indebtedness, provided that no such refinancing shall increase the outstanding principal amount of such indebtedness and any acquisition permitted hereunder or consummated prior replacement lien given to secure such refinancing shall be limited to the Closing Date machinery and not equipment securing such indebtedness), (b) existing indebtedness described in contemplation thereof or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance Section 9.5 of the Borrower Disclosure Schedule (provided that all such indebtedness shall be repaid in accordance with its terms with no extension, renewal or other modification), (c) indebtedness of the Company to banks or other financial institutions, provided that the aggregate principal amount of such indebtedness outstanding at any such Restricted Subsidiary time shall not exceed $5,000,000 ("Bank Debt"), (d) unsecured indebtedness of the Company which is subordinated in right of payment to the Notes pursuant to terms and conditions reasonably satisfactory to St. ▇▇▇▇, provided that the aggregate principal amount of such indebtedness outstanding at any such agreement;
time shall not exceed $100,000, (e) Indebtedness indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenderswholly-owned Subsidiaries which arises out of loans or advances permitted by Section 9.8(a), statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
(f) Indebtedness guarantees of indebtedness permitted by Section 9.7, (g) obligations of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cardsCompany under the Revolving Credit Program Agreement, stored value cardsand (h) indebtedness or liabilities, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services other than Indebtedness for Borrowed Money (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network servicesas hereinafter defined), employee credit card programs, cash pooling services and any arrangements incurred or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees arising in the ordinary course of business. Upon the incurrence by the Company of any Bank Debt, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations each of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(h) guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations holders of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangementsNotes shall execute and deliver agreements, in each caseform and substance reasonably satisfactory to St. ▇▇▇▇, in subordinating the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (x) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior Notes in right of payment to such Bank Debt and secured by subordinating the Collateral liens on a pari passu or junior basis with respect the assets of the Company and its Subsidiaries securing the Notes to the remaining Obligations hereunder, or is unsecured; provided that any liens on such Indebtedness that is secured by Liens on assets securing the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Bank Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a Loan.
Appears in 2 contracts
Sources: Convertible Debt Agreement (Printware Inc), Note Purchase Agreement (St Paul Companies Inc /Mn/)
Indebtedness. The Each Borrower shall not, nor and shall it not permit any of its Restricted Subsidiaries to, directly or indirectlycreate, createissue, incur, assume assume, become liable in respect of or otherwise become or remain liable with respect permit to exist any Indebtedness, except:
(a) Indebtedness in respect of the Obligations (including any Additional Term Loans)Obligations;
(b) Indebtedness evidencing the deferred purchase price of any newly acquired specific fixed asset consisting of personal property, or incurred to finance all or part of the Borrower acquisition of equipment of such Borrowers or any of its Subsidiaries (pursuant to any Restricted Subsidiary and/or of any Restricted Subsidiary purchase money security interest Indebtedness or otherwise, whether owed to the Borrower and/or any other Restricted Subsidiaryseller or a third party); provided, provided that any such Indebtedness is incurred within ninety (90) days of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations acquisition of such Loan Party on terms property and in respect of capital lease obligations; and provided further that are reasonably acceptable to the Administrative Agent (including aggregate amount of all Indebtedness outstanding pursuant to an Intercompany Notethis Section 8.1(b) shall not at any time exceed $5,000,000 (or, if denominated in a non-Dollar currency, the Dollar Equivalent thereof calculated as of the date of such acquisition);
(c) [reserved]Indebtedness pursuant to any Hydrocarbon Hedge Agreement or Interest Hedge Agreement (in each case, not being a Designated Hedge Agreement); provided that such Hedge Agreement otherwise complies with the terms of Section 8.14;
(d) Indebtedness arising from any agreement providing of an Obligor to another Obligor solely for indemnificationthe purpose of complying with the terms of (i) Section 7.11(a) or (ii) Section 8.7(g) and that, adjustment in all cases is subordinated in priority and right 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 payment to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing Obligations on terms reasonably satisfactory to the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreementMajority Lenders;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant Borrowers with respect to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of standby letters of credit, bank guarantiesguarantees, surety bondsindemnities, performance sureties or bonds provided to any Governmental Authority or similar instruments to support any other Person and assuring payment of contingent liabilities of the foregoing items;Borrowers and their Subsidiaries in connection with the operations of their respective businesses or the operation of the Hydrocarbon Interests, including with respect to plugging, facility removal, environmental remediation and abandonment of its Hydrocarbon Interests, in an aggregate amount not to exceed $2,500,000 (or, if denominated in a non-Dollar currency, the Dollar Equivalent thereof calculated as of the date of such incurrence) at any time; and
(f) Indebtedness described in Item 8.1(f) of the Borrower and/or any Restricted Subsidiary Disclosure Schedule. For the avoidance of doubt, nothing in this Section 8.1 shall restrict the Parent or its Subsidiaries (other than the Borrowers and their respective Subsidiaries) from issuing, incurring, assuming, or becoming liable in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(h) guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (x) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a Loan.
Appears in 2 contracts
Sources: Credit Agreement (Transatlantic Petroleum Ltd.), Credit Agreement (Transatlantic Petroleum Ltd.)
Indebtedness. The Borrower shall not“Indebtedness” means, nor shall it permit any of its Restricted Subsidiaries towithout duplication, directly or indirectly, create, incur, assume or otherwise become or remain liable with respect to any Indebtedness, except:
(a) the Obligations (including any Additional Term Loans);
all obligations of a Person for borrowed money, (b) Indebtedness all obligations of the Borrower to any Restricted Subsidiary and/or of any Restricted Subsidiary to the Borrower and/or any a Person evidenced by bonds, debentures, notes or other Restricted Subsidiary; providedsimilar instruments, that any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note);
(c) [reserved];
(d) Indebtedness arising from any agreement providing for indemnification, adjustment all obligations of a Person to pay the deferred purchase price of property or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
(f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items except trade accounts payable arising and interstate depository network services), employee credit card programs, cash pooling services paid on a timely basis and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (d) all capitalized leases of a Person which are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of Indebtedness of such leases shall be the capitalized amount thereof determined in accordance with GAAP, (e) all contingent and non-contingent obligations of a Person to reimburse any bank or other Person in respect of amounts paid under a letter of credit, banker’s acceptance or similar instrument, (f) all obligations of others secured by a lien on any asset of a Person, whether or not such obligation is otherwise an obligation of such Person, and provided that the amount of such Indebtedness of such Person under this clause (f) shall be the lesser of the fair market value of such property at the date of determination (determined in good faith by ▇▇▇▇▇▇▇▇) and the amount of such Indebtedness of such other Person, (g) the deferred portion from time to time of “earnouts,” and similar deferred payment obligations but excluding (i) trade accounts payable arising and paid on a timely basis in the ordinary course of business, and (ii) incentive compensation payable to Managing Directors, provided that such payments in each fiscal year of Borrower shall not, along with any payments payable to managing directors of the Guarantors, exceed 35% of the net income of Borrower and Guarantors before taxes, and (h) any guarantee of, or other contingent obligation with respect to, any Indebtedness of any other Person and (without duplication) any amount committed to be advanced, lent or extended to such other Person in the form of credit support being provided (whether as a comfort or “make whole” letter or other similar arrangement) for such other Person’s obligations (but excluding endorsements of instruments for deposit or collection in the ordinary course of business, obligations under indemnities incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred or under stock purchase price of goodsor asset purchase or sale agreements, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(h) guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations which do 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) cover Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent types set forth in excess of $6,000,000 described on Schedule 6.01;
clauses (ja) [reserved];
through (kg) 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 arrangementsabove), in each casecase howsoever evidenced, in the ordinary course of business and/or (iii) obligations to reacquire assets created, incurred, acquired or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Periodowing, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary whether primary, secondary, direct, contingent, fixed or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (x) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a Loanotherwise.
Appears in 2 contracts
Sources: Loan Agreement (Andersen Group Inc.), Loan Agreement (Andersen Group Inc.)
Indebtedness. The Parent and the Borrower shall will not, nor shall it and will not permit any of its Restricted their Subsidiaries to, directly or indirectly, create, incur, assume or suffer to exist or otherwise become or remain be liable with in respect to of any Indebtedness, exceptother than, without duplication, the following:
(a) Indebtedness in respect of the Obligations (including any Additional Term Loans)Credit Extensions and other Obligations;
(b) Indebtedness in respect of any Swap Agreement entered into by the Parent, the Borrower or any of their Subsidiaries that is not otherwise covered by Section 8.2(a); provided that (A) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with fluctuations in interest rates or foreign exchange rates, (B) such Swap Agreement does not contain any provision exonerating the non-defaulting party of its obligations to make payments on outstanding transactions to the defaulting party, and (C) the aggregate Termination Value thereof shall not exceed $20,000,000 at any time outstanding;
(c) Indebtedness of the Parent or its Subsidiaries identified in Item 8.2(c) (“Existing Indebtedness”) of the Disclosure Schedule, together with Permitted Refinancing Indebtedness in respect thereof;
(d) Indebtedness of (i) the Borrower owed to any of its Subsidiaries or (ii) any Subsidiary of the Borrower to any Restricted Subsidiary and/or of any Restricted Subsidiary owed to the Borrower and/or or any other Restricted SubsidiarySubsidiary of the Borrower, provided that (A) all such Indebtedness (except Indebtedness owing to any Person that is not a Loan Party) shall be evidenced by a promissory note in form and substance reasonably acceptable to the Administrative Agent; provided, that and (B) in the case of any such Indebtedness of any Loan Party owed to any Restricted Subsidiary such Person that is not a Loan Party must be expressly subordinated that is owing to the Obligations of such a Loan Party on terms that are reasonably acceptable to (other than the Administrative Agent Parent) (including pursuant to an Intercompany Note);
(cx) [reserved];
(d) Indebtedness arising from any agreement providing for indemnification, adjustment no Default or Event of purchase price Default shall have occurred and be continuing immediately before or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business after giving effect thereto; and (iiy) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of such Indebtedness shall be permitted only if the foregoing items;
(f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(h) guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related corresponding Investment is permitted under Section 6.06;
clause (i) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (zd) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (x) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b)8.5;
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a Loan
Appears in 2 contracts
Sources: Credit Agreement (GrubHub Inc.), Credit Agreement (GrubHub Inc.)
Indebtedness. The Such Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectlywill not incur, create, incur, assume or otherwise become permit to exist any indebtedness or remain liable with respect to liability on account of deposits or advances or any Indebtednessindebtedness for borrowed money or letters of credit issued on such Borrower’s behalf, or any other indebtedness or liability evidenced by notes, bonds, debentures or similar obligations, except:
(a) the Obligations (including any Additional Term Loans)indebtedness arising hereunder;
(b) 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 any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations indebtedness of such Loan Party Borrower in existence on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note)date hereof and listed in Schedule 7.2 hereto;
(c) [reserved];indebtedness of such Borrower (i) relating to liens of such Borrower permitted in accordance with Section 7.1, (ii) arising out of guaranties of such Borrower permitted under Section 7.3, (iii) arising for such Borrower as a result of an investment in or loan to such Borrower by another Borrower in accordance with Section 7.4, or (iv) in the case of Heska, at all times on or before January 31, 2006, indebtedness to Heska Holding AG in an amount not to exceed $1,500,000, and thereafter, zero.
(d) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stockunsecured trade debt incurred, and Indebtedness arising cash advances received from guaranteescustomers, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
(f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into each case in the ordinary course of business;
(he) guarantees by indebtedness of any Person existing at the Borrower and/or any Restricted Subsidiary time such Person is merged with or into such Borrower, to the extent the Lender consents to such merger in accordance with Section 7.7, and provided that such Debt is not incurred in connection with or in contemplation of Indebtedness or other obligations such merger;
(f) extensions, renewals and replacements of the Borrower debt referred to in clause (b) 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(c) above; provided that any such extension, renewal or replacement shall be in an amount not greater than, and on terms no less favorable to such Borrower (other than interest rate increases) than, the amount extended, renewed or replaced;
(g) Diamond’s incurrence of indebtedness of not less than [***] nor more than [***] secured by the Farm Mortgaged Property, in each case on terms acceptable to the Lender in its reasonable discretion, but in no event on terms less favorable to the Borrowers than the terms of the Term Loan B Note; and upon receipt of proceeds of such indebtedness, the Lender will release its security interest in the Farm Mortgaged Property;
(h) Diamond’s incurrence of indebtedness not less than [***] nor more than [***] secured by the Factory Mortgaged Property in connection with a refinancing of the Term Loan B Note, provided that (a) the proceeds of such indebtedness are sufficient to repay, and in fact are used to repay, the Term Loan B Note in its entirety, with the balance of such proceeds (if any) being deposited in Diamond’s Collateral Account for repayment of Revolving Advances, and (b) the terms of such indebtedness are acceptable to the Lender in its reasonable discretion, but in no event on terms less favorable to the Borrowers than the terms of the Term Loan B Note. In the case of any Guarantee by any Loan Party such a refinancing, the Lender agrees that it will release its security interest in the Factory Mortgaged Property upon receipt of the obligations proceeds of any non-Loan Party, the related Investment is such permitted under Section 6.06refinancing;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant other Debt in an amount not to commitments existing, on the Closing Date exceed $100,000; and, to the extent in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (x) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, capital leases to the extent the Liens securing entry into such Indebtedness were contractually subordinated at time leases does not cause a Default or Event of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations Default hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a Loan.
Appears in 2 contracts
Sources: Credit and Security Agreement (Heska Corp), Credit and Security Agreement (Heska Corp)
Indebtedness. The Borrower shall notNo Credit Party shall, nor shall it permit any of its Restricted the OZ 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 Additional Term Loans)and the “Obligations” as defined under the Existing Credit Agreement;
(b) Indebtedness of the Borrower any Credit Party to any Restricted Subsidiary and/or of any Restricted Subsidiary to the Borrower and/or any other Restricted Subsidiaryanother Credit Party; provided, that (i) all such Indebtedness shall be evidenced by the Intercompany Note, which shall be subject to a First Priority Lien pursuant to the Pledge and Security Agreement to the extent required by Section 5.10, (ii) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the 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 of any Loan Party owed by such Subsidiary to Borrower or to any Restricted Subsidiary that of its Subsidiaries for whose benefit such payment is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note)made;
(c) [reserved]current liabilities of the Credit Parties or the OZ Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(d) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of Section 5.3;
(e) Indebtedness in respect of judgments or awards only to the extent, for the period and for an amount not resulting in a Default;
(f) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(g) Indebtedness in the form of either a direct obligation of a Credit Party or OZ Subsidiary or in the form of a guaranty by a Credit Party or OZ Subsidiary, in each case, with respect to the obligation to refund or repay management, incentive or promote fees previously received from a fund;
(h) Indebtedness incurred by a Credit Party or OZ Subsidiary arising from any agreement agreements providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof from guaranties or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, bonds or performance bonds or similar instruments securing the performance of the Borrower such Credit Party or any such Restricted Subsidiary OZ Subsidiary, as applicable, pursuant to any such agreement;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tendersagreements, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
(f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance permitted acquisitions or similar programspermitted dispositions of any business or assets of a Credit Party or OZ Subsidiary;
(i) guarantees by the Borrower and/or Indebtedness which may be deemed to exist pursuant to any Restricted Subsidiary of the obligations of suppliersguaranties, customers and licensees in the ordinary course of businessperformance, (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 goodssurety, servicesstatutory, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties appeal or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into obligations incurred in the ordinary course of business;
(h) guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;
(ij) Indebtedness in respect of the Borrower and/or any Restricted Subsidiary existingnetting services, or pursuant to commitments existing, on the Closing Date and, to the extent overdraft protections and otherwise in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved]connection with deposit accounts;
(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, guaranties in the ordinary course of business and/or of the obligations of suppliers, customers, franchisees and licensees of a Credit Party or OZ Subsidiary, as applicable;
(iiil) obligations other unsecured Indebtedness, so long as at the time of such incurrence (x) after giving effect to reacquire assets the incurrence of such Indebtedness, the Economic Income Leverage Ratio as of the end of the last Fiscal Quarter for which financial statements have been delivered pursuant to Section 5.1 does not exceed 4.00 to 1.00 and (y) no Default or inventory in connection with customer financing arrangements in the ordinary course Event of businessDefault shall have occurred and be continuing;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money other unsecured Indebtedness in an aggregate outstanding principal amount not to exceed the greater of at any time $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants150,000,000;
(n) Indebtedness of 57 Aviation Services, LLC (or any Person that becomes a Restricted Subsidiary or successor to such entity pursuant to any transaction permitted under Section 6.7) existing on the date hereof, any additional Indebtedness assumed in connection with an acquisition of such entity or any other similar investment permitted hereunder after OZ Subsidiary (the Closing Date; provided that “New Aviation Subsidiary”) (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject any successor to such Indebtedness were acquired entity pursuant to any transaction permitted under Section 6.7) incurred to purchase or finance one additional aircraft and related engines (Bincluding spare engines) was not created or incurred in anticipation for such aircraft, and any renewals, extensions, replacements and refinancings of the foregoing; provided, that, the purchase price of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) additional aircraft shall not exceed the Borrower price that is in pro forma compliance with three times the Financial Covenants;purchase price of the aircraft currently owned by 57 Aviation Services, LLC; and
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (x) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness guaranties with respect to Indebtedness permitted under clauses (m), a) through (r) and (un) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a Loan6.1.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Och-Ziff Capital Management Group LLC)
Indebtedness. The Borrower shall not, nor and it shall it not permit any of its Restricted Subsidiaries other Loan Party to, directly or indirectly, create, incur, assume assume, issue or guaranty, or otherwise become or remain directly or indirectly liable with respect to to, any Indebtedness, Indebtedness except:
(a) the Obligations (including any Additional Term Loans)Obligations;
(b) 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 any Indebtedness of any Loan Party owed to any Restricted Subsidiary other Loan Party; provided that is not a Loan Party must all such Indebtedness shall be expressly subordinated unsecured and evidenced by and subject to the Obligations of such Loan Party on terms that are reasonably acceptable and conditions of, the Subordinated Intercompany Note (and the Borrower shall have delivered to the Administrative Agent (including a declination letter from the NIGC, in form and substance reasonably satisfactory to the Administrative Agent, with respect to the subordination agreement), which note shall be subject to a first priority Lien in favor of the Collateral Agent pursuant to an Intercompany Note)the Security Agreement;
(c) [reserved];
(d) Indebtedness incurred by a Loan Party arising from any agreement agreements providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with permitted acquisitions or dispositions of any Disposition permitted hereunder, any acquisition permitted hereunder business or consummated prior assets of such Loan Party;
(d) Indebtedness which may be deemed to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary exist pursuant to any such agreement;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contractsperformance, surety, staystatutory, customs, appeal, performance and/or return of money bonds appeal bond or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
(f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(he) guarantees by Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit or securities accounts;
(f) Guarantees in the Borrower and/or ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the Loan Parties not to exceed $2,000,000 in the aggregate at any Restricted Subsidiary time;
(g) other than in the case of Indebtedness or other obligations incurred pursuant to Section 6.01(j), Guarantees by a Loan Party of the Borrower or any Restricted Subsidiary Indebtedness of another Loan Party with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01;
(h) Indebtedness existing on the Closing Date and set forth in Schedule 6.01 or other obligations not prohibited by this Agreement; provided that and Permitted Refinancing Indebtedness 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 6.06respect thereof;
(i) Indebtedness consisting of (x) PNG Advances or additional Subordinated Term Loans under the Subordinated Loan Credit Agreement (1) advanced pursuant to Section 4.4 of the Borrower and/or any Restricted Subsidiary existingDisbursement Agreement, (2) advanced in accordance with Section 6.1.1 of the Disbursement Agreement, (3) consisting of amounts to be used in the Project or to fund Roadway Improvements and loaned pursuant to the Completion Guaranty, (4) advanced to pay Operating Expenses (as defined in the Management Agreement), or (5) utilized to fund Roadway Improvements and related expenses, (y) PNG Advances and GMP Loans to the Borrower constituting Supplemental Payment Amounts less any repayments thereof and (z) Permitted Refinancing Indebtedness in respect of Indebtedness incurred pursuant to commitments existing, on this clause (i) (which may take the Closing Date and, to form of additional Subordinated Term Loans under the extent in excess of $6,000,000 described on Schedule 6.01Subordinated Loan Credit Agreement);
(j) [reserved];
(kx) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Capital Lease Obligations and purchase money Indebtedness to be utilized to lease or acquire, respectively, furniture, fixtures and equipment (including gaming equipment) for use in an the Project in a combined aggregate outstanding principal amount not to exceed the greater of at any time $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date5,000,000; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (x) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving purchase money Indebtedness, such Indebtedness (xi) has shall be secured only by the asset acquired in connection with the incurrence of such Indebtedness or other assets financed in accordance with this clause (j) and any proceeds thereof by the same Person or an Affiliate of such Person (all of which assets shall be a Weighted Average Life type that is readily removable from, and not integral to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of structure of, the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (mProject), (rii) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other not less than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect 75% of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date aggregate consideration paid with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) asset and (yiii) in any mandatory prepayments shall be incurred prior to or within one hundred eighty (180) days after the acquisition of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a Loanasset and
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Penn National Gaming Inc)
Indebtedness. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or otherwise become or remain liable with respect to any Indebtedness, except:
(a) the Secured Obligations (including any Additional Term Loans and any Additional Revolving Loans);
(b) Indebtedness of the Borrower to any Restricted Subsidiary and/or Joint Venture and/or of any Restricted Subsidiary and/or Joint Venture to the Borrower and/or or any other Restricted SubsidiarySubsidiary and/or Joint Venture; provided that in the case of any Indebtedness of any Restricted Subsidiary and/or Joint Venture that is not a Loan Party owing to a Loan Party, such Indebtedness shall be permitted as an Investment by Section 6.06; provided, further, that any all such Indebtedness of any Loan Party owed to any Restricted Subsidiary and/or Joint Venture that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable no less favorable to the Administrative Agent (including pursuant to an and the Secured Parties than the subordination provisions contained in the Intercompany Note);Note attached as Exhibit N hereto:
(c) [reserved];
(d) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stock, and Indebtedness arising from guaranteesguaranties, letters of credit, bank guaranteesguaranties, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
(f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including Banking Services Obligations and dealer incentive, supplier finance or similar programs;
(i) guarantees 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, services, CRE Finance Assets goods or Real Estate Investments services or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business; provided the aggregate outstanding principal amount of Indebtedness in respect of letters of credit under this clause (iii) shall not exceed the greater of $25,000,000 and 45% of Consolidated Adjusted EBITDA of the Borrower and its Restricted Subsidiaries as of the last day of the most recently ended Test Period for which financial statements have been or were required to be delivered pursuant to Sections 5.01(a) or (b), as applicable;
(h) guarantees Guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or 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 6.066.06 and; provided, further, that if the Indebtedness being Guaranteed is unsecured and/or junior lien Indebtedness, the Guarantee will also be unsecured and/or be expressly subordinated in right of payment to the Obligations;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 and described on Schedule 6.01;
(j) [reserved]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 $20,000,000 and 30% of Consolidated Adjusted EBITDA of the Borrower and its Restricted Subsidiaries as of the last day of the most recently ended Test Period for which financial statements have been or were required to be delivered pursuant to Sections 5.01(a) or (b), as applicable;
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations 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 assets in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 6,000,000 and 0.7510% of Consolidated Total Assets Adjusted EBITDA of the Borrower and its Restricted Subsidiaries as of the last day of the most recently ended last Test PeriodPeriod for which financial statements have been or were required to be delivered pursuant to Sections 5.01(a) or (b), so long as the Borrower is in pro forma compliance with the Financial Covenantsapplicable;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation thereof, (ii) at the time of the execution of the definitive agreement governing such acquisition on a pro forma basis for such acquisition, no Event of Default existed or would result from the consummation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (iiiii) the Borrower is in pro forma compliance with Section 6.15 (whether or not then in effect) calculated on a Pro Forma Basis as of the Financial Covenantslast day of the most recently ended Test Period for which financial statements have been or were required to be delivered pursuant to Sections 5.01(a) or (b), as applicable, prior to the date of the execution of the definitive agreement governing such acquisition;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower 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 subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower any Parent Company permitted by Section 6.04(a);
(p) the Borrower and its Restricted Subsidiaries may become and remain liable for any Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (j), (m), (n), (rq), (u) ), (w), (y), and (z) of this Section 6.01 (in any case, including any refinancing Indebtedness incurred in respect thereof, “Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
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 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 the related refinancing transactionreplacement, (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 (x1) any such 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 (y2) 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) or (u), (rA) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to on or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
replaced, (iii) [reserved],
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 the terms of any Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) above, 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 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), (ru) (w), (y) and (uz) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause (with amounts originally incurred under the relevant clause to be deemed to remain outstanding under such clause,
, notwithstanding the refinancing thereof), (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(it being understood that in all cases 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, Indebtedness is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, 6.01 and (C) if the Indebtedness being refinanced, refunded or replaced was expressly originally contractually subordinated to the Obligations in right of paymentpayment (or the Liens securing such Indebtedness were originally contractually subordinated to the Liens on the Collateral securing the Secured Obligations), (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, payment (or (y) if not contractually the Liens securing such Indebtedness are subordinated to the Obligations Liens on the Collateral securing the Secured Obligations) 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, (vi) except in right the case of paymentRefinancing Indebtedness with respect to clause (a) of this Section 6.01, as of the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement date of the incurrence of such Indebtedness is permitted under Section 6.04(b) and after giving effect thereto, no Event of Default exists, and (other than Section 6.04(b)(i), and
(vivii) in the case of Replacement NotesRefinancing 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, or is unsecured; provided that any such Indebtedness that is secured by Liens on pari passu or junior with respect to the Collateral shall be subject to any applicable Acceptable Intercreditor Agreementsan intercreditor agreement on terms reasonably satisfactory to the Administrative Agent and the Borrower, (B) such if the Indebtedness being refinanced, refunded or replaced is secured, it is not secured by any assets other than the Collateral and Collateral, (C) if the Indebtedness being refinanced, refunded or replaced is Guaranteed, it shall not be incurred or guaranteed Guaranteed by any Person other than one or more a Loan Parties, Party and (CD) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement;
(q) unsecured Indebtedness incurred to finance acquisitions permitted hereunder after the Closing Date; provided that (i) at the time of the execution of the definitive agreement governing the relevant acquisition on a pro forma basis for such acquisition, no Event of Default exists (or would result from the consummation of such acquisition), (ii) after giving effect to the acquisition as of the last day of the most recently ended Test Period for which financial statements have been or were required to be delivered pursuant to Sections 5.01(a) or (b), as applicable, prior to the date of the execution of the definitive agreement governing such acquisition, (A) the Borrower is in compliance, on a Pro Forma Basis, with Section 6.15 (whether or not then in effect) and (DB) if the Total Leverage Ratio, calculated on a Pro Forma Basis, does not exceed 6.00:1.00, (iii) such Replacement Notes are incurred 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 refinance Indebtedness outstanding under the Loan Documentsrepurchase in connection with any change of control, then, except as otherwise set forth above in this Section 6.01(pDisposition or casualty event and (C) customary acceleration rights after an event of default), in each case, prior to the other terms date which is 91 days after the Latest Maturity Date as of the date of incurrence thereof and conditions (iv) the aggregate outstanding principal amount of such Replacement Notes, if Indebtedness of Restricted Subsidiaries that are not substantially identical to those applicable to Loan Parties shall not exceed the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option greater of the Borrower, (x) not be materially more restrictive to $15,000,000 and 25% of Consolidated Adjusted EBITDA of the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders orlast day of the most recently ended Test Period for which financial statements have been or were required to be delivered pursuant to Sections 5.01(a) or (b), as applicable, minus the Administrative Agent aggregate principal amount of such Indebtedness of Restricted Subsidiaries that are not Loan Parties outstanding in reliance on clause (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance1) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time first proviso of incurrence or issuance (as determined by the Borrower in good faithSection 6.01(w); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”)[reserved];
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of 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[reserved];
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 20,000,000 and 3.230% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election Adjusted EBITDA of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a Loanits
Appears in 1 contract
Indebtedness. (a) The Borrower shall Company will not, nor shall will it permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume incur or otherwise become or remain liable with respect suffer to exist any Indebtedness, Indebtedness except:
(i) Indebtedness to the Lenders hereunder and under the Five-Year Credit Agreement and unsecured Indebtedness replacing in whole or in part the facility established by this Agreement or by the Five-Year Credit Agreement; provided that (a) the Obligations Loans outstanding under this Agreement or the Five-Year Credit Agreement will be repaid, and the Commitments under such Agreements shall be reduced, by amounts equal to the aggregate net proceeds of such replacement Indebtedness at the time of the issuance thereof, (including b) the weighted average life to maturity of such replacement Indebtedness shall not be less than that of the Indebtedness under this Agreement or the Five-Year Credit Agreement, as the case may be, and (c) the obligors in respect of any Additional Term Loans)such replacement Indebtedness shall be limited to the Borrowers;
(bii) the Senior Securities and the Guarantees thereof by the Company and ▇▇▇▇▇▇ Operating;
(iii) Indebtedness outstanding on the date hereof and reflected in Schedule 6.07, and refinancings and extensions of any thereof that do not increase the outstanding principal amount of such Indebtedness;
(iv) Subordinated Indebtedness;
(v) Indebtedness of the Borrower to any Restricted Subsidiary and/or of any Restricted Subsidiary (x) Subsidiaries to the Borrower and/or any other Restricted Subsidiary; provided, that any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated Company to the Obligations of such Loan Party on terms that are reasonably acceptable extent the Company is permitted by Section 6.06 to make Investments in Subsidiaries, (y) Subsidiaries to other Subsidiaries or (z) the Administrative Agent (including pursuant Company to an Intercompany Note)Subsidiaries;
(cvi) [reserved]Guarantees permitted by Section 6.03;
(dvii) Indebtedness arising from any agreement providing for indemnificationunder Working Capital Credit Lines, adjustment provided that the Working Capital Credit Lines of purchase price or similar obligations (including contingent earn-out obligations) incurred Subsidiaries other than Northrop Operating and ▇▇▇▇▇▇ Operating shall be in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and an aggregate principal amount not in contemplation thereof or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreementgreater than $300,000,000;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
(f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iiiviii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or banker's acceptances and similar instruments supporting trade payables, warehouse receipts issued or similar facilities entered into in accepted for the ordinary course of business;
(h) guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations account of the Borrower Company or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (x) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of 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 herebyits business;
(uix) Indebtedness of issued pursuant to the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed Northrop Operating Senior Indenture or the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved]▇▇▇▇▇▇ Operating Senior Indenture;
(x) [reserved]Indebtedness under Interest Rate Protection Agreements permitted or required by Section 6.13;
(yxi) [reserved];Indebtedness under the Existing Credit Agreements and the Refinanced Debt, but only until the Effective Date; and
(zxii) Incremental Equivalent Debt;additional Indebtedness of the Company and the Subsidiaries (including Capital Lease Obligations and other Indebtedness secured by Liens permitted under clauses (e) and (f) of Section 6.05 hereof) up to but not exceeding $375,000,000 in the aggregate at any one time outstanding.
(aab) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by The Borrowers will not permit the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations all of the Borrower, Subsidiaries that are not Borrowers (other than Indebtedness owing to the Company or another Subsidiary) to exceed $425,000,000 in the aggregate at any Restricted Subsidiary that is a Loanone time outstanding.
Appears in 1 contract
Indebtedness. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectlynot incur, create, incurassume, assume or otherwise become or remain be liable in any manner with respect to, or permit to exist, any Indebtednessobligations or indebtedness, except:
EXCEPT: (a) the Obligations (including any Additional Term Loans);
Obligations; (b) 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 any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note);
(c) [reserved];
(d) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory trade obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations reasonably incurred in the ordinary course of business and normal accruals in the course of business that are not past due, or with respect to which the Borrower is contesting in good faith the amount or validity thereof by appropriate proceedings diligently pursued and available to Borrower, and with respect to which adequate reserves have been set aside on its books; (c)(i) indebtedness (including capital leases) to the extent not incurred or secured by liens (including capital leases) in violation of any other provision of this Agreement or (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds indebtedness relating to equipment leases or similar instruments to support any of the foregoing items;
(f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities equipment financing transactions entered into in an arm's length transaction and on commercially reasonable terms; (d) the ordinary course of business;
(h) guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 described indebtedness set forth on Schedule 6.01;
9.9 hereto; and (je) [reserved];
unsecured subordinated indebtedness of Borrower (k"SUBORDINATED DEBT") Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations hereafter owing under incentiveto one or more other Persons (each, supplya "JUNIOR CREDITOR"), license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of PROVIDED, THAT (i) the financing Junior Creditor making any such subordinated loan(s) to Borrower shall have executed and delivered in favor of insurance premiums, (ii) take-or-pay obligations contained in supply arrangementsLender a subordination agreement, in each caseform and substance satisfactory to Lender, which shall provide, among other things, that the Subordinated Debt owing to such Junior Creditor is subject and subordinate in right of payment to the ordinary course right of business and/or (iii) obligations Lender to reacquire assets or inventory receive the prior final payment and satisfaction in connection with customer financing arrangements in the ordinary course full of business;
(m) Indebtedness all of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test PeriodObligations, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder all proceeds of the Borrower or any current or former directorSubordinated Debt shall be remitted by Borrower, officerupon receipt thereof, employeeto Lender for application to the then unpaid Obligations in such order and manner as Lender shall determine; PROVIDED, member of managementTHAT, manager or consultant of with respect to the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under indebtedness described in clauses (a), (i), (m), (n), (r), (uc) and (zd) of this Section 6.01 9.9, Borrower may only make regularly scheduled payments of principal and interest in respect of such indebtedness in accordance with the terms of the agreement or instrument evidencing or giving rise to such indebtedness as in effect on the date hereof so long as no Event of Default exists and is continuing, EXCEPT THAT, Borrower shall have the right to refinance and prepay any equipment financing indebtedness and shall have the right to prepay any other indebtedness described in clauses (“Refinancing Indebtedness”c) and any subsequent Refinancing Indebtedness in respect thereof(d) of this Section 9.9; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinancedPROVIDED THAT, refunded or replaced, except by (A) an amount equal no Event of Default exists and is continuing on the date Borrower proposes to unpaid accrued interest, penalties and premiums make such prepayment (including tender premiums"PREPAYMENT DATE") thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses as set forth in a notice of such proposed prepayment to be delivered by Borrower to Lender at least ten (including upfront fees, original issue discount or initial yield payments10) incurred in connection with days prior to the relevant refinancing, refunding or replacement and the related refinancing transactionPrepayment Date, (B) an amount equal after giving effect to any existing commitments unutilized thereunder such proposed prepayment, Borrower has Excess Availability of not less than $20,000,000, and (C) additional amounts the aggregate amount of all prepayments 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), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a LoanSection
Appears in 1 contract
Indebtedness. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or otherwise become or remain liable with respect to any Indebtedness, except:
(a) : 124. the Secured Obligations (including any Additional Term LoansLoans and/or Commitments);
(b) ; 125. Indebtedness of the Borrower to any Restricted Subsidiary and/or of any Restricted Subsidiary to the Borrower and/or or any other Restricted Subsidiary; provided, provided that any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note);
(c) Party; 126. [reserved];
(di) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Third Amendment Effective Date and not in contemplation thereof or any other purchase of assets or Capital Stock, Stock and (ii) Indebtedness arising from guaranteesguaranties, letters of credit, bank guaranteesguaranties, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreement;
(e) ; 128. Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and 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;
items and (fiii) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of trade letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(h) guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (x) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a Loan
Appears in 1 contract
Sources: First Lien Credit Agreement (Hayward Holdings, Inc.)
Indebtedness. The Borrower shall not, nor and shall it not permit any of its Restricted Subsidiaries Subsidiary to, incur, create, assume, become or be liable in any manner with respect to, suffer or permit to exist, any Indebtedness or guarantee, assume, endorse, or otherwise become responsible for (directly or indirectly) the performance, create, incur, assume dividends or otherwise become or remain liable with respect to other obligations of any IndebtednessPerson, except:
(a) the Obligations (including any Additional Term Loans)Obligations;
(b) purchase money Indebtedness (including Capital Leases) arising after the date hereof to the extent secured by purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages on real estate not to exceed $1,000,000 in the aggregate at any time outstanding so long as such security interests and mortgages do not apply to any property of Borrower other than the Equipment or real estate so acquired, and the Indebtedness secured thereby does not exceed the cost of the Borrower to any Restricted Subsidiary and/or of any Restricted Subsidiary to Equipment or real estate so acquired, as the Borrower and/or any other Restricted Subsidiary; provided, that any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note)case may be;
(c) [reserved]guarantees by any Subsidiaries of Borrower of the Obligations in favor of Lender;
(d) Indebtedness arising from any agreement providing of Borrower under interest swap agreements, interest rate cap agreements, interest rate collar agreements, interest rate exchange agreements and similar contractual agreements entered into for indemnificationthe purpose of protecting a Person against fluctuations in interest rates; provided, adjustment that, such arrangements are with banks or other financial institutions that have combined capital and surplus and undivided profits 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 not less than $250,000,000 and are not in contemplation thereof or any other purchase of assets or Capital Stock, for speculative purposes and such Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreementshall be unsecured;
(e) unsecured Indebtedness of the Borrower and/or any Restricted Subsidiary owing to Guarantor, provided, that, (i) pursuant such Indebtedness is subject and subordinate in right of payment to tendersthe right of Lender to receive the prior indefeasible payment and satisfaction in full payment of all of the Obligations, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) Borrower shall not, directly or indirectly, make, or be required to make, any payments in respect of letters such Indebtedness, including, but not limited to, any prepayments or other non-mandatory payments, except as Lender may otherwise agree in writing, (iii) Borrower shall not, directly or indirectly, (A) amend, modify, alter or 45 51 change the terms of creditsuch Indebtedness or any agreement, bank guarantiesdocument or instrument related thereto, surety bondsexcept, performance bonds that, Borrower may, after prior written notice to Lender, amend, modify, alter or similar instruments change the terms thereof so as to support extend the maturity thereof, or defer the timing of any payments in respect thereof, or to forgive or cancel any portion of such Indebtedness (other than pursuant to payments thereof), or to reduce the foregoing items;interest rate or any fees in connection therewith, or (B) redeem, retire, defease, purchase or otherwise acquire such Indebtedness (except pursuant to regularly scheduled payments permitted herein), or set aside or otherwise deposit or invest any sums for such purpose, and (iv) Borrower shall furnish to Lender all notices or demands in connection with such Indebtedness either received by Borrower or on its behalf promptly after the receipt thereof, or sent by Borrower or on its behalf concurrently with the sending thereof, as the case may be; and
(f) Indebtedness owing to Persons other than Affiliates of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(h) guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer lease financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets whereby Leases are included as of the last day of the most recently ended Test Periodcollateral, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or is incurred in anticipation connection with a Securitization, sale of such acquisition Leases or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) an Approved Financing Transaction, and (ii) on the Borrower is in pro forma compliance with the Financial Covenants;
date of incurring such Indebtedness, (oA) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder Lender shall have received not less than ten (10) Business Days' prior written notice of the Borrower or any current or former directorintention to incur such Indebtedness, officerwhich notice shall set forth in reasonable detail satisfactory to Lender, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, such other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection information with the relevant refinancing, refunding or replacement and the related refinancing transactionrespect thereto as Lender may reasonably request, (B) an amount equal to any existing commitments unutilized thereunder promptly upon Lender's request, Lender shall have received true, correct 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 complete copies 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) all agreements, documents and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for instruments evidencing or otherwise replace such bridge loans shall be subject related to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined duly executed and delivered by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01parties thereto, (C) if the Indebtedness being refinancedno Event of Default or act, refunded condition or replaced was expressly contractually subordinated to the Obligations in right event which with notice or passage of payment, time would constitute an Event of Default shall exist or have occurred and be continuing; (xD) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if arrangements and agreements do not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral provide for a lien on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this AgreementCollateral, and (E) if Lender requires, such new lender shall execute a Waiver, Disclaimer and Release Agreement (a form of which is annexed hereto as Exhibit D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms form and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably substance satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a LoanLender.
Appears in 1 contract
Indebtedness. (a) The Borrower shall notnot create, nor shall it incur or suffer to exist, or permit any of its Restricted Subsidiaries toto create, incur or suffer to exist, any Indebtedness, or incur, assume, endorse, be or become liable for, or guarantee, directly or indirectly, createor permit or suffer to exist, incur, assume or otherwise become or remain liable with respect to any IndebtednessContingent Obligation, except:
(ai) Indebtedness and Contingent Obligations in respect of the Obligations (including any Additional Term Loans)or evidenced by a Loan Document;
(b) 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 any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note);
(c) [reserved];
(d) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) current liabilities in respect of letters of credittaxes, bank guarantiesassessments and governmental charges or levies incurred, surety bondsor claims for labor, 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 cardsmaterials, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goodsinventory, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods supplies and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(h) guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existingrentals incurred, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license for goods 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 caseservices purchased, in the ordinary course of business and/or consistent with the past practice of the Borrower and its Subsidiaries;
(iii) obligations Indebtedness of the Borrower consisting of fees and expenses referred to reacquire assets in Section 4.1(n) and 4.2(f);
(iv) Indebtedness of the Borrower or inventory any of its Subsidiaries arising pursuant to the Second Facility.
(v) Indebtedness of the Borrower or any of its Subsidiaries under Capital Financing Indebtedness in respect of each Hotel Facility in an aggregate amount for such Hotel Facility not exceeding $200,000.00 at any one time outstanding; and
(vi) Indebtedness of the Borrower or any of its Subsidiaries comprising pre-existing Indebtedness secured by Real Estate and any personal property located thereon, which the Borrower or any of its Subsidiaries assumes in connection with customer financing arrangements the acquisition of such Real Estate, in an aggregate amount not exceeding $25,000,000.
(b) The Borrower shall not cancel, or permit any of its Subsidiaries to cancel, any claim or Indebtedness owed to it except for adequate consideration and in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (x) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a Loan.
Appears in 1 contract
Sources: Revolving Credit Agreement (Hospitality Properties Trust)
Indebtedness. The Borrower shall notNo 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 liable with respect to any Indebtedness, except:
(a) the Obligations (including any Additional Term Loans)Obligations;
(b) Indebtedness of the Borrower any Subsidiary of Holdings to any Restricted other Subsidiary and/or of Holdings; provided, (i) all such Indebtedness shall be evidenced by the Intercompany Note, and, if owed to a Credit Party, shall be subject to a First Priority Lien pursuant to the Security Agreement, (ii) all such Indebtedness shall be unsecured and, if owed by a Credit Party, shall be subordinated in right of payment to the Payment in Full of the Obligations pursuant to the terms of the Intercompany Note, (iii) any payment by any such Guarantor Subsidiary under any guaranty of the Obligations shall result in a pro rata reduction of the amount of any Restricted Indebtedness owed by such Subsidiary to the Borrower and/or or to any other Restricted Subsidiary; provided, that any Credit Parties for whose benefit such payment is made and (iv) such Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to permitted as an Intercompany NoteInvestment under Section 6.6(d);
(c) [reservedReserved];
(d) Indebtedness arising from which may be deemed to exist pursuant to any agreement providing for indemnificationworkers’ compensation claims, adjustment of purchase price self-insurance obligations, guaranties, performance, surety, statutory, appeal bonds or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
(f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(he) guarantees by the Borrower and/or any Restricted Subsidiary Indebtedness consisting of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;
(i) Indebtedness any treasury or other cash management services, 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 the Borrower and/or any Restricted Subsidiary existinginstruments 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 pursuant to commitments existing“P-Cards”), on the Closing Date andprepaid cards, to the extent including payroll, stored value and gift cards, merchant services processing, and debit card services, in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into each case incurred in the ordinary course of business;
(lf) 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, guaranties in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (x) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrowersuppliers, any Restricted Subsidiary that is a Loancustomers, franchisees and licensees of Subsidiaries of Holdings;
Appears in 1 contract
Indebtedness. The Borrower shall will not, nor shall it and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create, incur, assume or otherwise become or remain liable with respect permit to exist any Indebtedness, except:
: (a) the Obligations (including any Additional Term Loans);
Obligations; (b) Indebtedness of incurred to finance the Borrower to any Restricted Subsidiary and/or acquisition, construction or improvement of any Restricted Subsidiary to the Borrower and/or any other Restricted Subsidiary; providedfixed or capital assets, that including Capital Lease Obligations and any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note);
(c) [reserved];
(d) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred assumed in connection with the acquisition of any Disposition permitted hereunder, such assets or secured by a Lien on any acquisition permitted hereunder or consummated such assets prior to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stockacquisition thereof, and Indebtedness arising from guaranteesextensions, letters renewals and replacements of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of that do not increase the Borrower and/or any Restricted Subsidiary outstanding principal amount thereof; provided that (i) pursuant such Indebtedness is incurred prior to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return or within ninety (90) days after such acquisition or the completion of money bonds such construction or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
(f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of businessimprovement, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(h) guarantees by the Borrower and/or any Restricted Subsidiary aggregate principal amount of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;
clause (ib) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount shall not to exceed the greater of (A) $33,000,000 200,000,000 and 0.75(B) 2.00% of Consolidated Total Assets Net Tangible Assets, determined on a pro forma basis as of the last day of the most recently ended Test Period, so long as fiscal quarter of the Borrower is in pro forma compliance for which financial statements were required to be delivered pursuant to Section 5.01, at any time outstanding and (iii) with respect to Indebtedness incurred by the Financial Covenants;
Borrower pursuant to this clause (n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that b), (ix) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder shall be of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under type described in clauses (a), (ib), (m), c) or (n), (r), (u) and (zh) of this Section 6.01 (the definition of “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” or, 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 if solely in connection with any Capital Lease Obligations, such Indebtedness shall be of the relevant refinancingtype described in clauses (d) or (e) of the definition of “Indebtedness” (and for the avoidance of doubt, refunding or replacement and no Guarantee by the related refinancing transaction, (B) an amount equal to Borrower of Indebtedness of any existing commitments unutilized thereunder and (C) additional amounts other Person shall be permitted to be incurred pursuant to this Section 6.01 (provided that (x) any additional Indebtedness referenced in under 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 permittedb)) and (y) if such additional Indebtedness is secured, the Lien securing aggregate principal amount of all such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by exceed $50,000,000 at any Person other than one or more Loan Parties, time outstanding; (Cc) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) Indebtedness Incurrence Conditions shall be satisfied at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any of such Indebtedness, Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness Subsidiary of the Borrower and/or any Restricted Subsidiary in an incurred pursuant to Permitted Receivables Facilities; provided that the aggregate outstanding principal amount of Attributable Receivables Indebtedness thereunder shall not to exceed 200% the greater of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries $500,000,000 and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.25.00% of Consolidated Total Assets Net Tangible Assets, determined on a pro forma basis as of the last day of the most recently ended Test Period, plus (ii) at the election fiscal quarter of the Borrower for which financial statements were required to be delivered pursuant to Section 5.01, at any time outstanding; (d) Indebtedness existing on the date hereof and without duplication)set forth on Schedule 6.01 and extensions, renewals, refinanced and replacements of any such Indebtedness, provided that any such extended, renewed, refinanced or replaced Indebtedness shall not increase the principal amount (and, in the case of Indebtedness consisting, in whole or in part, of unused revolving commitments, the applicable amount thereof) except by an amount equal to unpaid accrued interest and premium thereon plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with such modification, refinancing, refunding, renewal or extension and by an amount equal to any existing commitments unutilized thereunder, any amount reallocated Liens securing such Indebtedness shall not be extended to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that any additional property of the Borrower may reallocate or any Subsidiary, none of the Borrower or any Subsidiary that is not originally obligated with respect to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) repayment of the original Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments is required to become obligated with respect to such Indebtedness) incurred by , such Indebtedness shall not shorten the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations average weighted maturity of the Borroweroriginal Indebtedness and if the original Indebtedness was subordinated in right of payment to the Obligations, any Restricted Subsidiary that is a Loanthen the terms and conditions of such Indebtedness must include subordination 82
Appears in 1 contract
Sources: Credit Agreement (Ugi Corp /Pa/)
Indebtedness. The Borrower shall not, (a) Neither the Company nor shall it permit any of its Restricted Subsidiaries tohas any liability or obligation for Indebtedness other than as set forth oh Part 2.8(a) of the Company Disclosure Schedule, directly or indirectlyand true and complete copies of all instruments and documents evidencing, createcreating, incur, assume securing or otherwise relating to such Indebtedness have been delivered to Investor heretofore. Except as described in Part 2.8(a) of the Company Disclosure Schedule, no event has occurred and no condition has become or remain liable with respect known to any Indebtedness, except:
(a) the Obligations Company (including any Additional Term Loans);
(bthe transactions contemplated hereby) Indebtedness that constitutes or, with notice or passage of time, or both, would constitute a default or a basis of force majeure or other claim of accelerated or increased rights, termination, excusable delay or nonperformance by the Borrower to any Restricted Subsidiary and/or of any Restricted Subsidiary to the Borrower and/or any other Restricted Subsidiary; provided, that any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note);
(c) [reserved];
(d) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price Company or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof its Subsidiaries or any other purchase of assets Person under any instrument or Capital Stock, and document relating to or evidencing Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds that would entitle any Person to require the Company or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
(f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary its Subsidiaries to pay the deferred purchase price any portion of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(h) guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed prior to the principal amount scheduled maturity thereof. Except as set forth in Part 2.8(a) of the Indebtedness being refinancedCompany Disclosure Schedule, refunded no instrument or replaceddocument evidencing, except by (A) an amount equal to unpaid accrued interestcreating, 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), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect relating to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not will require the consent of any such existing Term Lender so long Person to or as a result of the form consummation of the transactions contemplated by this Agreement.
(but not b) As of the substanceClosing Date, except as set forth on Part 2.8(b) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions fromCompany Disclosure Schedule, the Borrower Company will not have any liability or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into obligation for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;any of the Company’s or its Subsidiaries’ assets or the Company business and none of the Company’s or its Subsidiaries’ assets will be subject to any Encumbrances (except Permitted Encumbrances).
(bbc) Part 2.8(c) of the Company Disclosure Schedule contains a list and brief description of all agreements or instruments pursuant to which the Company’s or its Subsidiaries’ directors, employees or shareholders, or any other Person, have guaranteed any Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility the Company or CRE Financing its Subsidiaries (the “Guaranties”). True and any guarantees and co-borrower obligations complete copies of the Borrower, any Restricted Subsidiary that is a Loanall Guaranties have been previously delivered to Investor.
Appears in 1 contract
Sources: Securities Purchase Agreement (Gordon Biersch Brewery Restaurant Group, Inc.)
Indebtedness. The Borrower shall will not, nor shall it and will not permit any of its Restricted Subsidiaries to, directly or indirectlycontract, create, incur, assume or otherwise become suffer to exist any Indebtedness of the Borrower or remain liable with respect to any Indebtednessof its Subsidiaries, exceptEXCEPT:
(a) Indebtedness incurred under this Agreement and the Obligations (including any Additional Term Loans)other Credit Documents;
(b) Indebtedness of the Borrower or any Subsidiary (x) in respect of Capital Leases and/or (y) subject to Liens permitted by section 9.3(c); PROVIDED that (i) the aggregate Capitalized Lease Obligations of the Borrower and its Subsidiaries, plus the aggregate outstanding principal amount of Indebtedness subject to Liens permitted under section 9.3(c), shall not exceed $3,000,000 in the aggregate at any Restricted Subsidiary and/or time outstanding, and (ii) at the time of any Restricted Subsidiary to incurrence thereof after the Borrower and/or any other Restricted Subsidiary; provideddate hereof, that any Indebtedness and after giving effect thereto, no Event of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must Default shall have occurred and be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note)continuing or would result therefrom;
(c) [reserved]any guaranty by the Borrower of any Indebtedness referred to in the preceding clause (b);
(d) Indebtedness arising from any agreement providing for indemnificationExisting Indebtedness, 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 extent not otherwise permitted pursuant to the foregoing clauses; and any refinancing, extension, renewal or refunding of any such Existing Indebtedness not involving an increase in contemplation the principal amount thereof or any other purchase a reduction of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing more than 10% in the performance of the Borrower or any such Restricted Subsidiary pursuant remaining weighted average life to any such agreementmaturity thereof (computed in accordance with standard financial practice);
(e) Indebtedness of the Borrower and/or or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing itemsunder Hedge Agreements;
(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 its Subsidiaries, and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or Indebtedness of 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 Borrower's Subsidiaries to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(h) guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted to another Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (x) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive in each case to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith)extent permitted under section 9.5; 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);and
(qg) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied Guaranty Obligations permitted under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a Loansection 9.5.
Appears in 1 contract
Indebtedness. The Borrower Company shall not, nor shall it permit any of its Restricted Subsidiaries subsidiaries to, directly or indirectly, create, :
(i) incur, assume or otherwise become guarantee any indebtedness for borrowed money or remain liable issue any debt securities (or other securities convertible into debt securities) other than (A) indebtedness in the ordinary course of business that individually does not exceed $5,000,000 and does not exceed $10,000,000 in the aggregate (it being understood and agreed that upon repayment of any loan or advance permitted by the foregoing exception, the amount of such repayment shall be available for future loans or advances pursuant to the foregoing exception, subject to the foregoing restriction on the aggregate amount of all such loans or advances that may be outstanding at any time), or (B) loans, advances or capital contributions by the Company to one or more of its subsidiaries in the ordinary course of business consistent with respect past practices or by any subsidiary of the Company to the Company or any Indebtedness, except:
(a) other subsidiary of the Obligations (including any Additional Term Loans)Company;
(bii) Indebtedness make any loans or advances to any other person, other than (A) advancement of expenses to employees in the ordinary course of business consistent with past practice, (B) loans or advances by the Company to one or more of its subsidiaries in the ordinary course of business consistent with past practices or by any subsidiary of the Borrower to any Restricted Subsidiary and/or of any Restricted Subsidiary Company to the Borrower and/or Company or any other Restricted Subsidiary; provided, subsidiary of the Company that any Indebtedness complies with Section 4.01(g)(i) or (C) extensions of any Loan Party owed credit to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to customers in the Obligations ordinary course of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note)business consistent with past practices;
(ciii) [reserved]grant or incur any Liens (except for any Permitted Liens) that is material to the Company and its subsidiaries, taken as a whole;
(div) Indebtedness arising from any agreement providing for indemnificationredeem, adjustment repurchase or prepay (other than (A) prepayments of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred revolving loans in the ordinary course of business and (iiB) redemptions, repurchases or prepayments in accordance with the terms of any Company Material Contract) or modify in any material respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any indebtedness of the foregoing items;
(f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(h) guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (x) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower Company and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a Loansubsidiaries.
Appears in 1 contract
Sources: Merger Agreement (Finisar Corp)
Indebtedness. The Borrower shall notCollectively, nor shall it permit any of its Restricted Subsidiaries towithout duplication, directly or indirectlywhether classified as Indebtedness, create, incur, assume an Investment or otherwise become or remain liable with respect to any Indebtednesson the obligor’s balance sheet, except:
(a) the Obligations (including any Additional Term Loans);
all indebtedness for borrowed money, (b) Indebtedness of all obligations for the Borrower to any Restricted Subsidiary and/or of any Restricted Subsidiary to the Borrower and/or any other Restricted Subsidiary; provided, that any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note);
(c) [reserved];
(d) Indebtedness arising from any agreement providing for indemnification, adjustment of deferred purchase price of property or similar obligations services (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, than trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations payables incurred in the ordinary course of business and which either (i) are not overdue by more than ninety (90) days, or (ii) are being disputed in respect of letters of creditgood faith and for which adequate reserves have been established in accordance with GAAP), bank guaranties(c) all obligations evidenced by notes, surety bonds, performance bonds debentures or other similar instruments debt instruments, (d) all obligations created or arising under any conditional sale or other title retention agreement with respect to support any property acquired (even though the rights and remedies of the foregoing items;
seller or lender under such agreement in the event of default are limited to repossession or sale of such property), (e) all obligations, liabilities and indebtedness under Capitalized Leases, (f) all obligations, liabilities or indebtedness arising from the making of a drawing under surety, performance bonds, or any other bonding arrangement, (g) Guaranties with respect to all Indebtedness of the Borrower and/or any Restricted Subsidiary others referred to in respect of commercial credit cardsclauses (a) through (f) above, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(h) guarantees all Indebtedness of others referred to in clauses (a) through (f) above secured or supported by (or for which the Borrower and/or holder of such Indebtedness has an existing right, contingent or otherwise, to be secured or supported by) any Restricted Subsidiary of Indebtedness Lien on the property or other obligations assets of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 Subsidiary, even though the owner of the property has not assumed or other obligations not prohibited by this Agreementbecome liable, contractually or otherwise, for the payment of such Indebtedness; provided that in if a Permitted Receivables Transaction is outstanding and is accounted for as a sale of accounts receivable under generally accepted accounting principles, Indebtedness shall also include the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (x) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductionsdetermined on a consolidated basis, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the which would have been outstanding had such Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken Receivables Transaction been accounted for as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a Loanborrowing.
Appears in 1 contract
Indebtedness. The Borrower shall Holdings will not, nor shall it and will not permit any of its Restricted Subsidiaries to, directly or indirectlycontract, create, incur, assume or otherwise become or remain liable with respect suffer to exist any Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement and the Obligations (other Credit Documents, including any Additional Term Loans)Letters of Credit;
(b) Indebtedness of the Borrower any Subsidiary Guarantor to CAM or any other Subsidiary Guarantor, or of CAM to any Restricted Subsidiary and/or Guarantor;
(c) Indebtedness permitted by Section 9.4(c) of any Restricted Subsidiary the CAM Credit Agreement as in effect from time to time (provided that, if the CAM Credit Agreement is terminated while this Agreement remains in effect, this clause (c) shall continue to apply as Section 9.4(c) of the CAM Credit Agreement as in effect immediately prior to the Borrower and/or termination thereof);
(d) Hedging Obligations (provided that such obligations are entered into to hedge actual risks and not for speculative purposes);
(e) guarantees (i) by any other Restricted Subsidiary; provided, that Credit Party of any Indebtedness of any Loan other Credit Party owed to otherwise permitted hereunder, (ii) by any Restricted Subsidiary that is not a Loan Credit Party must be expressly subordinated of any Indebtedness of any Subsidiary that is not a Credit Party (other than the Relief Fund) so long as the Indebtedness so guaranteed is otherwise permitted hereunder and (iii) by Holdings or any Subsidiary making an Investment in a Person permitted by Section 9.5(k) of any Indebtedness of such Person, so long as such guarantee is limited to the Obligations Fair Market Value (determined as of the date of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note);
(cInvestment) [reserved];
(d) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any Investment made in such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing itemsPerson;
(f) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the Borrower and/or any Restricted Subsidiary case of daylight overdrafts) drawn against insufficient funds in the Ordinary Course of Business, provided that such Indebtedness is extinguished within two Business Days of its incurrence;
(g) Indebtedness under and in respect of commercial letters of 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 issued on behalf of Holdings or services similar to any of its Subsidiaries (and not issued under this Agreement or the foregoing and/or otherwise CAM Credit Agreement);
(h) Capital Leases in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programsan aggregate amount outstanding not to exceed at any time $250,000,000;
(i) guarantees by other Indebtedness of Holdings and its Subsidiaries (other than intercompany Indebtedness); provided, that, after giving effect to the Borrower and/or any Restricted Subsidiary incurrence of such Indebtedness on a pro forma basis, Holdings and its Subsidiaries shall be in compliance with Section 9.12, Section 9.13 and, unless a Collateral Suspension Period is in effect at the time of the obligations incurrence of supplierssuch Indebtedness, customers and licensees in the ordinary course of businessSection 9.14, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(h) guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted compliance to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets determined as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred Period for which financial statements have been delivered pursuant to this Section 6.01 8.1(a) or (provided that (x) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (ub) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without after giving effect to the addition of Aircraft to, and/or the removal of any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01Aircraft from, the incurrence thereof shall be without duplication of any amounts outstanding Collateral Pool in reliance on accordance with Section 8.10 occurring after the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time end of such refinancing, refunding or replacement Test Period (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, the value of any Aircraft added to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than Pool pursuant to Section 6.02(k)) or are subordinated 8.10 and not otherwise included in the most recent Aircraft Appraisal delivered to the Liens Administrative Agent pursuant to the terms hereof shall be based on the Collateral securing the Initial Term Loans on terms not materially less favorable fair market value of such Aircraft (as reasonably determined in good faith by the Borrower)) (and, taken as a wholefor the avoidance of doubt, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(bthis clause (i) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable addition to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option permitted under any other clause of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in this Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b9.4);
(qj) [reserved]the 2021 Add-On Notes;
(rk) Indebtedness permitted by Section 9.4(k) of the Borrower and/or any Restricted Subsidiary CAM Credit Agreement as in an aggregate outstanding principal amount not effect from time to exceed 200% of time (provided that, if the amount of Net Proceeds received by the Borrower from any cash contribution (made CAM Credit Agreement is terminated while this Agreement remains in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stockeffect, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (rk) shall continue to apply as Section 9.4(k) of the CAM Credit Agreement as in effect immediately prior to the termination thereof), a “Contribution Indebtedness Amount”);; and
(sl) Indebtedness of incurred pursuant to the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of CAM Credit Agreement and the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a LoanCAM Credit Documents.
Appears in 1 contract
Sources: Credit Agreement (Air Transport Services Group, Inc.)
Indebtedness. The Borrower shall not, nor shall it permit any of its the Restricted Subsidiaries to, directly or indirectly, create, incur, assume or otherwise become or remain liable with respect to any Indebtedness, except:
(a) the Secured Obligations (including any Additional Term Loans and any Additional Revolving Loans);
(b) Indebtedness of the Borrower to any Restricted Subsidiary and/or or of any Restricted Subsidiary to the Borrower and/or or any other Restricted Subsidiary; provided that in the case of any Indebtedness of any Restricted Subsidiary that is not a Loan Party owing to any Loan Party, solely to the extent the related Investment shall be a Permitted Investment or permitted under Section 6.04(a); and provided, further, that any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated in right of payment to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note)Obligations;
(c) [reserved]Permitted Funding Debt and Guarantees thereof;
(d) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stock, and Indebtedness arising from guaranteesguaranties, letters of credit, bank guaranteesguaranties, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of the Borrower and/or or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or 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 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 AccountsBanking Services, including Banking Services Obligations and incentive, supplier finance or similar programsprograms and Indebtedness constituting credit balances in accounts;
(i) guarantees guaranties by the Borrower and/or 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 or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets goods or Real Estate Investments services or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(h) guarantees Guarantees by the Borrower and/or or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement6.01; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is a Permitted Investment or is permitted under Section 6.066.04(a);
(i) Indebtedness of the Borrower and/or or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to in the extent case of any such Indebtedness with an aggregate outstanding principal amount in excess of $6,000,000 1,000,000, described on Schedule 6.016.01(i);
(j) [reserved]Indebtedness of Restricted Subsidiaries that are not Loan Parties; provided that the aggregate outstanding principal amount of such Indebtedness shall not exceed (together with any Indebtedness of a non-Loan Party pursuant to Sections 6.01(q) and (w)(ii)) the greater of $90,000,000 and 25.0% of Consolidated Adjusted EBITDA for the most recently ended Test Period;
(k) Indebtedness of the Borrower and/or 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 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 or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or or any Restricted Subsidiary with respect to Capitalized Lease Obligations Capital Leases and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 55,000,000 and 0.7515.0% of Consolidated Total Assets as of the last day of Adjusted EBITDA for the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness in respect of customary “spring recourse” or “bad boy” guarantees with respect to real estate financing transactions entered into by the Borrower or any Person Restricted Subsidiary; provided, that becomes a such Guarantee is non-recourse to the Borrower or such Restricted Subsidiary or Indebtedness assumed in connection other than with an acquisition or any other similar investment permitted hereunder after respect to losses resulting from customary “bad acts” of the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment Borrower or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial CovenantsSubsidiary;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower 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 any Parent Company permitted by Section 6.04(a);
(p) the Borrower and the Restricted Subsidiaries may become and remain liable for any Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (j), (m), (nq), (r), (u) ), (w), (y), and (z) of this Section 6.01 (in any case, including any refinancing Indebtedness incurred in respect thereof, “Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereofthereof and such Refinancing Indebtedness shall be deemed permitted and outstanding under such clauses; provided that:
(i) the principal amount of such Refinancing Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties interest and premiums (including tender premiums) thereon plus underwriting discounts, 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 the related refinancing transactionreplacement, (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 (x1) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition 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 (y2) if such additional Indebtedness is secured, the Lien securing such Refinancing Indebtedness satisfies the applicable requirements of is permitted under Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (nq)(i), (rq)(ii) and or (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity such Refinancing Indebtedness Exception, 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 Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such timereplaced,
(iii) [reserved],
(iv) in the case 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 Indebtedness permitted under clauses (m), (r) and (u) 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) above, security), are not, taken as a whole (as reasonably determined by the Borrower), more favorable to the lenders providing such Refinancing Indebtedness than those applicable to the Indebtedness being refinanced, refunded or replaced (other than (A) any covenants or any other provisions applicable only to periods after the Latest Maturity Date as of such date, (B) any covenants or other provisions which constitute then-current market terms for the applicable type of Indebtedness or (C) any covenants or other provisions which are conformed (or added) to the Loan Documents for the benefit of the Lenders or the Administrative Agent, as applicable, pursuant to an amendment to this Agreement effectuated in reliance on Section 6.01 incurred as Replacement Term Loans9.02(d)(ii)),
(iv) [Reserved],
(v) except in the case of Refinancing Credit Facilities Indebtedness, (A) the primary obligor in respect of the applicable Refinancing Indebtedness shall have been the primary obligor in respect of the relevant refinanced Indebtedness, (B) 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), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (BC) 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, (CD) if the Indebtedness being refinanced, refunded or replaced was expressly originally contractually subordinated to the Obligations in right of paymentpayment (or the Liens securing such Refinancing Indebtedness were originally contractually subordinated to the Liens on the Collateral securing the Secured Obligations), (x) such Refinancing Indebtedness is contractually subordinated to the Obligations in right of payment, payment (or (y) if not contractually the Liens securing such Refinancing Indebtedness are subordinated to the Obligations in right Liens on the Collateral securing the Secured Obligations) 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 (E) as of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement date of the incurrence of such Refinancing Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i)and after giving effect thereto, no Event of Default exists, and
(vi) in the case of Replacement NotesRefinancing Credit Facilities Indebtedness, (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, hereunder or is unsecured; provided that any such Refinancing Indebtedness that is secured by Liens on pari passu or junior with respect to the Collateral shall be subject to any applicable an Acceptable Intercreditor AgreementsAgreement, (B) if such Refinancing Indebtedness is secured, it is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan PartiesCollateral, (C) if such Refinancing Indebtedness is Guaranteed, it shall not be Guaranteed by any Person that is not a Loan Party, and (D) such Refinancing Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed provided that any such Refinancing Indebtedness consisting of term loans that is are 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 Term Loans may participate on a first lien pro rata basis may participate or a less than pro rata basis (xbut not greater than a pro rata basis) in any voluntary prepayments or mandatory prepayment in respect of the Initial Term Loans as set forth in Section 2.11(a)(i) (and (y) in any mandatory prepayments of Additional Term Loans then subject to ratable repayment requirements), in each case as set forth in Section 2.11(b)the Borrower and the relevant lender may agree;
(q) [reserved]Indebtedness (i) assumed in connection with any acquisition or other Investment permitted hereunder consummated after the Closing Date, or existing at the target of any such acquisition or Investment at the time it becomes a Subsidiary, provided that any such Indebtedness was not incurred by the target of such acquisition or other Investment in contemplation of such acquisition or other Investment, (ii) existing at the time an Unrestricted Subsidiary becomes a Restricted Subsidiary if such Indebtedness was not incurred in contemplation of such Person becoming a Restricted Subsidiary or (iii) incurred in connection with any acquisition or other Investment permitted hereunder and consummated after the Closing Date; provided that, in each case, (A) at the time such Person becomes a Restricted Subsidiary or at the time of the execution of the definitive agreement governing such acquisition or other Investment, as the case may be, on a Pro Forma Basis for the most recently ended Test Period, the Total Leverage Ratio would not exceed 3.00:1.00, (B) such Indebtedness incurred in reliance on clause (iii) above by Restricted Subsidiaries that are not Loan Parties (I) shall not exceed (together with any Indebtedness of a non-Loan Party pursuant to Sections 6.01(j) and (w)(ii)) the greater of $90,000,000 and 25.0% of Consolidated Adjusted EBITDA for the most recently ended Test Period, (II) shall 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 payments as part of an “applicable high yield discount obligation” catch-up payment, customary offers to repurchase in connection with any change of control, Disposition or casualty event and customary acceleration rights after an event of default), in each case, prior to the Latest Term Loan Maturity Date, and (III) the Weighted Average Life to Maturity applicable to such Indebtedness shall not be shorter than the Weighted Average Life to Maturity of the then-existing Term Loans, (C) at the time such Person becomes a Restricted Subsidiary or at the time of the execution of the definitive agreement governing such acquisition or other Investment, as the case may be, no Event of Default shall have occurred and be continuing, (D) in the case of any such Indebtedness in the form of term loans that are pari passu with the Initial Term Loans with respect to security incurred prior to the date that is 12 months after the Closing Date (other than any such Indebtedness that constitutes MFN Adjustment Excluded Indebtedness), the Effective Yield applicable thereto (as determined on the date of initial incurrence thereof) will not be more than 0.50% per annum higher than the Effective Yield in respect of the Initial Term Loans (as determined on such date) unless the Effective Yield with respect to the Initial Term Loans is adjusted to be equal to such Effective Yield applicable to such Indebtedness, minus, 0.50% per annum;
(r) unsecured Indebtedness of the Borrower and/or or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200100.0% of the amount of Net Proceeds received by the Borrower from (i) the issuance or sale of Qualified Capital Stock or (ii) any cash contribution (made in Cash or converted into Cash) to the its common equity of with the Borrower and Net Proceeds from the issuance and sale by the Borrower any Parent Company of its Qualified Capital StockStock or a contribution to the common equity of any Parent Company, in each case, (iA) other than any Net Proceeds received from (I) the Cure Amount or (II) the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries Subsidiary and (iiB) other than to the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under extent the Available Amount to incur a transaction (the amount of any relevant Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”)are Not Otherwise Applied;
(s) Indebtedness of the Borrower and/or or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, consultants and consultants independent contractors of any Parent Company, the Borrower and/or or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a Loano
Appears in 1 contract
Sources: Credit Agreement (Cowen Inc.)
Indebtedness. The Borrower shall notNo 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 (including any Additional Term Loans);
(b) Obligations; Indebtedness of the Borrower any Subsidiary Guarantor to Company or to any Restricted other Subsidiary and/or Guarantor, or of Company to any Restricted Subsidiary to the Borrower and/or any other Restricted SubsidiaryGuarantor; provided, (i) -------- 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, (ii) all such Indebtedness 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 inter company subordination agreement that in any such case, is reasonably satisfactory to Administrative Agent, and (iii) any payment by any such Subsidiary Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness of any Loan Party owed by such Subsidiary to Company or to any Restricted Subsidiary that of its Subsidiaries for whose benefit such payment is made; Permitted Parent Guarantor Indebtedness not to exceed at any time the aggregate outstanding principal amount of $350,000,000, or with respect to Permitted Parent Guarantor Indebtedness issued at a Loan Party must be expressly subordinated to the Obligations discount, an initial accreted value of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note);
(c) [reserved];
(d) $350,000,000; Indebtedness incurred by Parent Guarantor or any of its Subsidiaries arising from any agreement agreements providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof from guaranties or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, bonds or performance bonds or similar instruments securing the performance of the Borrower Parent Guarantor or any such Restricted Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any such agreement;
(e) business, assets or Subsidiary of Parent Guarantor or any of its Subsidiaries; Indebtedness of the Borrower and/or any Restricted Subsidiary (i) which may be deemed to exist pursuant to tendersany guaranties, statutory obligations, bids, leases, governmental contracts, trade contractsperformance, surety, staystatutory, customs, appeal, performance and/or return of money bonds appeal or other similar obligations incurred in the ordinary course of business and (ii) business; Indebtedness 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 protections and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by deposit accounts; guaranties in the Borrower and/or any Restricted Subsidiary ordinary course of business of the obligations of suppliers, customers customers, franchisees and licensees in the ordinary course of business, (ii) Parent Guarantor and its Subsidiaries; guaranties by Company of Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted a Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets Guarantor or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(h) guarantees by the Borrower and/or any Restricted a Subsidiary of Company of Indebtedness of Company or other obligations of the Borrower or any Restricted a Subsidiary Guarantor with respect respect, in each case, to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 6.1; Indebtedness described in Schedule 6.1, but not any extensions, renewals or other obligations not prohibited by this Agreement; provided that in the case replacements of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;
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 average life to maturity thereof is greater than or equal to that of the Borrower and/or any Restricted Subsidiary existingIndebtedness being refinanced or extended; provided, or pursuant to commitments existing, on such Indebtedness permitted under the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of immediately preceding clause (i) the financing of insurance premiums, -------- or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or above shall not (iiiA) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) include Indebtedness of the Borrower and/or any Restricted Subsidiary an obligor that was not an obligor with respect to Capitalized Lease Obligations the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced (except it may be increased by an amount to cover the fees and expenses, including consent fees, placement fees and prepayment premiums, relating to such refinancing) or (C) incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom; and Indebtedness of Company and its Subsidiaries with respect to Capital Leases and purchase money Indebtedness of Company and its Subsidiaries (including any Indebtedness acquired in connection with a Permitted Acquisition), in an aggregate outstanding principal amount not to exceed the greater of at any time $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period30,000,000; provided, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) any such purchase money Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued shall be secured only by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred -------- asset acquired 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 incurrence of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured such assets may secure other purchase money Indebtedness may be refinanced with unsecured Indebtednessto the same lender), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either and shall constitute Permitted Liens (other not less than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect 80% of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date aggregate consideration paid with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit asset; Indebtedness consisting of obligations of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming Company or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent Guarantor in respect of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction Hedge Agreement not entered into for speculative purposes;
(t) ; and other unsecured 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 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 Company or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary Guarantor not in an aggregate outstanding principal amount not to exceed the sum of (i) the greater excess of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) 5,000,000 at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a Loantime outstanding.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Northpoint Communications Group Inc)
Indebtedness. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or otherwise become or remain liable with respect to any Indebtedness, except:
(a) the Obligations (including any Additional Term Loans);
(b) 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 any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note);
(c) [reserved];
(d) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
(f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(h) guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (x) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a Loan
Appears in 1 contract
Sources: Term Loan Credit Agreement (Claros Mortgage Trust, Inc.)
Indebtedness. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly, not create, incur, assume or otherwise become suffer to exist, or remain liable with respect permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Indebtedness, except:
(a) Indebtedness of Borrower under or pursuant to this Agreement and the Obligations (including any Additional Term Loans)other Loan Documents;
(b) Indebtedness of existing, or arising pursuant to commitments existing, on the Borrower date hereof, all as set forth in SCHEDULE 3.9, and any extensions, renewals, refundings or refinancings thereof on substantially the same terms or other terms satisfactory to any Restricted Subsidiary and/or of any Restricted Subsidiary to the Borrower and/or any other Restricted SubsidiaryLender; providedPROVIDED, HOWEVER, that any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to neither the Obligations of such Loan Party on terms that are reasonably acceptable to principal amount thereof nor the Administrative Agent interest rate (including pursuant to an Intercompany Note)the manner of calculating a variable rate of interest) thereon shall be increased, nor shall the amortization schedule thereof be shortened;
(c) [reserved];
Contingent Obligations consisting of (d1) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the indorsement by Borrower or any of its Subsidiaries of negotiable instruments payable to such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds Person for deposit or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
(f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees collection in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(h2) guarantees executed by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary of its Subsidiaries with respect to Indebtedness of Borrower and its Subsidiaries 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;
(id) Indebtedness Contingent Obligations consisting of the indemnification by Borrower and/or or any Restricted Subsidiary existingof its Subsidiaries of (1) the officers, directors, employees and agents of Borrower or pursuant to commitments existing, on the Closing Date andsuch Subsidiary, to the extent in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) Indebtedness permissible under the corporation law of the jurisdiction in which Borrower and/or any Restricted or such Subsidiary consisting is organized, (2) commercial banks, investment bankers and other independent consultants or professional advisors pursuant to agreements relating to the underwriting of obligations owing under incentiveBorrower's or such Subsidiary's securities or the rendering of banking or professional services to Borrower or such Subsidiary and (3) landlords, supplylicensors, license or similar licensees and other parties pursuant to agreements entered into in the ordinary course of businessbusiness by Borrower or such Subsidiary;
(le) Indebtedness with respect to financed insurance premiums not past due;
(f) Indebtedness of the Borrower and/or any Restricted that is owed to a Subsidiary consisting of Borrower and that is described in clause (id) 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;SECTION 4.13; and
(mg) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Purchase Money Debt and Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of 250,000 outstanding at any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (x) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a Loan.
Appears in 1 contract
Sources: Loan Agreement (Find SVP Inc)
Indebtedness. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectlyIncur, create, incur, assume or otherwise become or remain liable with respect permit to exist any Indebtedness, howsoever evidenced, except:
(a) Indebtedness existing as of the Obligations Closing Date as set forth either (i) in Schedule 7.05(a)(i) with respect to SEI and its Subsidiaries on a consolidated basis (including without limitation the Senior Indenture Notes, the Seller Financed Indebtedness and Non-Compete Liabilities) or (ii) in Schedule 7.05(a)(ii) with respect to any Additional Term Loans)Indebtedness owing by any Subsidiary of SEI that is not a Guarantor to SEI or any SEI Guarantor; provided that except as expressly set forth in (f) and (h) below, none of the instruments and agreements evidencing or governing such Indebtedness shall be amended, modified or supplemented after the Closing Date in any manner that would be less favorable in any material respect to the Administrative Agent and the Lenders than as in effect on the Closing Date;
(b) 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 any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable owing to the Administrative Agent (including pursuant to an Intercompany Note)or any Lender in connection with this Agreement, any Note or other Loan Document;
(c) [reserved];
(d) Indebtedness arising from any agreement providing the endorsement of negotiable instruments for indemnification, adjustment of purchase price deposit or collection or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
(f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into transactions in the ordinary course of business;
(hd) guarantees by the Borrower and/or any Restricted Subsidiary of (i) purchase money Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect to described in Section 7.04(f) and Capital Leases described in Section 7.04(g), and (ii) secured Acquired Indebtedness otherwise permitted to be incurred pursuant to this described in 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 6.067.04(h);
(ie) Indebtedness obligations (contingent or otherwise) of the Borrower and/or SEI or any Restricted Subsidiary existingexisting or arising under any Swap Contract, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of provided that (i) the financing of insurance premiums, such obligations are (iior were) take-or-pay obligations contained in supply arrangements, in each case, entered into by such Person in the ordinary course of business and/or for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(f) Indebtedness extending the maturity of, or renewing, refunding or refinancing, in whole or in part, the Indebtedness permitted under clause (a) or clause (d) above, provided that that (i) the aggregate principal amount of such extended, renewed, refunded or refinanced Indebtedness shall not be increased by such action (other than by amounts required to pay any fees, premium or transaction costs in connection with such extension, renewal, refunding or refinancing), (ii) the weighted average life of such Indebtedness shall not be less than the weighted average life of the Indebtedness extended, renewed, refunded or refinanced thereby, (iii) obligations the maturity date of such Indebtedness shall not be before the maturity date of the Indebtedness extended, renewed, refunded or refinanced thereby, (iv) the group of direct or contingent obligors on such Indebtedness shall not be expanded as a result of any such action, (v) the terms relating to reacquire assets collateral (if any) or inventory subordination (if any) of such Indebtedness, or any instrument or agreement entered into in connection with customer financing arrangements therewith, shall be no less favorable in any material respect to the Lenders, (vi) immediately before and immediately after giving effect to any such extension, renewal, refunding or refinancing, no Default or Event of Default shall have occurred and be continuing, and (vii) in the ordinary course case of businessany such Indebtedness that extends, renews, refunds or refinances the Senior Indenture Notes in whole or in part, the earliest maturity (including any mandatory prepayments and “put” options of the holders thereof, other than customary and usual mandatory prepayments and put rights or repurchase obligations arising as a result of a change in control (so long as such change in control provision is not more restrictive than the Change of Control provided herein) and customary and usual obligations requiring prepayments or repurchases with the proceeds of asset sales in the event such proceeds are not used or required to be used to reinvest or pay down senior indebtedness) of any such Indebtedness is not earlier than the date that is six months after the Maturity Date;
(mg) unsecured intercompany Indebtedness for loans and advances made (i) by SEI to any SEI Guarantor, (ii) by any SEI Guarantor to SEI or any SEI Guarantor, (iii) by any PR Borrower or any PR Guarantor to SEI, any SEI Guarantor, any PR Guarantor or any PR Borrower, (iv) by any Subsidiary that is not a Borrower or a Guarantor to SEI or any of the its Subsidiaries, (v) by any Borrower and/or or any Restricted Guarantor to any Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness that is not a Borrower or a Guarantor in an aggregate outstanding amount not to exceed $5,000,000 at any time outstanding, and (vi) by SEI or any SEI Guarantor to any PR Borrower or any PR Guarantor, subject to the PR Downstream Limit;
(h) one or more issuances of Refinancing Indebtedness in a maximum aggregate principal amount not to exceed the greater Maximum Specified Additional Debt Amount in effect at the time of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Periodsuch issuance, so long as (i) no Default has occurred and is continuing at the Borrower time of, or would result from, such issuance, and (ii) 100% of the net proceeds thereof is used to repay outstanding amounts under the Senior Indenture Notes (including interest, premium, fees and expenses in pro forma compliance connection therewith) in connection with the Financial Covenantsa tender or call for all or substantially all thereof;
(ni) additional unsecured Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; SEI not otherwise covered by clauses (a) through (h) above and clauses (j) through (l) below, 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 is either not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued guaranteed by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (of SEI or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (x) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent, (ii) no Default has occurred and is continuing at the time of, or would result from, such issuance or incurrence, and (iii) in the event any issuance or incurrence of any such Indebtedness, whether in a single transaction or in a series of related transactions, is in a maximum principal amount in excess of $50,000,000, SEI shall have delivered a Compliance Certificate prepared on an historical pro forma basis as of the most recent date for which financial statements have been furnished pursuant to Section 5.06(a) or Section 6.01(a) or (zb), which certificate shall demonstrate that no Default or Event of Default would exist immediately after giving effect to the incurrence or issuance of such Indebtedness;
(j) reflect then current market additional unsecured Indebtedness of SEI or any SEI Guarantor not otherwise covered by clauses (a) through (i) above and clauses (k) through (l) below, which Indebtedness may be guaranteed by SEI or any SEI Guarantor (but, notwithstanding Section 7.05(k) below, not by any Subsidiary of SEI that is not a SEI Guarantor), so long as no Default has occurred and is continuing at the time of, or would result from, such issuance or incurrence, and such Indebtedness is issued or incurred on terms and conditions that are either (taken as a wholeA) typical for the issuance of high yield notes at such time and otherwise no more restrictive than, or less advantageous to the Lenders under, this Agreement (including terms of maturity, amortization, security and priority), or (B) reasonably satisfactory to the Administrative Agent; provided that (i) if SEI does not demonstrate that, after giving effect to any such Indebtedness, (A) the Consolidated Leverage Ratio is at least 0.50 less than the then maximum permitted Consolidated Leverage Ratio under Section 7.01(a) (e.g., if the maximum permitted Consolidated Leverage Ratio at the time of the applicable issuance or incurrence of Indebtedness is 5.00 to 1.00, then SEI would need to demonstrate that the Consolidated Leverage Ratio is less than or issuance equal to 4.50 to 1.00 for this clause (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect A) not 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)(iapply) and (yB) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding Consolidated Senior Secured Leverage Ratio is less than or equal to 1.25 to 1.00, then the maximum principal amount of all such Indebtedness permitted under this Section 7.05(j) shall not to exceed 200% of the amount of Net Proceeds received by the Borrower from $150,000,000 at any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stocktime outstanding, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than in the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount event any issuance or incurrence of any Net Proceeds such Indebtedness, whether in a single transaction or contribution utilized in a series of related transactions, is in a maximum principal amount in excess of $50,000,000, SEI shall have delivered a Compliance Certificate prepared on an historical pro forma basis as of the most recent date for which financial statements have been furnished pursuant to incur Indebtedness in reliance on this clause Section 5.06(a) or Section 6.01(a) or (rb), a “Contribution Indebtedness Amount”)which certificate shall demonstrate that no Default or Event of Default would exist immediately after giving effect to the incurrence or issuance of such Indebtedness;
(sk) the guarantee by SEI or any Subsidiary of any Indebtedness of SEI or any SEI Guarantor that was permitted to be incurred, created, assumed or to exist by another provision of this Section 7.05 (except to the Borrower and/or extent any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;such guarantee is prohibited by the provisions permitting such Indebtedness); and
(tl) unsecured Indebtedness of SEI or any Subsidiary in respect of performance bonds, worker’s compensation claims, surety or appeal bonds and payment obligations in connection with self insurance or similar obligations, in each case to the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary extent incurred in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a Loanbusiness.
Appears in 1 contract
Indebtedness. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly, createCreate, incur, assume or guaranty, or otherwise become or remain liable with respect to any Indebtedness, except:
(a) the Obligations (including any Additional Term Loans)Obligations;
(b) (i) 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 any Restricted Subsidiary and/or exceed $600,000,000 and guaranty obligations of any Restricted Subsidiary to the Borrower and/or any other Restricted Subsidiary; providedU.S. Guarantor in respect of such Indebtedness, that any (iii) Indebtedness of the U.S. Borrower in respect of the 2022 Notes in an aggregate principal amount not to exceed $700,000,000 and guaranty obligations of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations U.S. Guarantor in respect of such Loan Party on terms that are reasonably acceptable to Indebtedness and (iv) any Permitted Refinancing of the Administrative Agent Indebtedness described in clause (including pursuant to an Intercompany Notei), (ii) or (iii);
(c) [reserved];
(d) Indebtedness arising from of any agreement providing for indemnificationRestricted Subsidiary owed to any Borrower or to any other Restricted Subsidiary, adjustment or of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, Borrower owed to any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof Restricted Subsidiary or any other purchase of assets or Capital StockBorrower; provided, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary that (i) all such Indebtedness owed to a U.S. Loan Party shall, if owed by a U.S. Subsidiary, NY\5627635.16 be evidenced by an intercompany note and be subject to a First Priority Lien pursuant to tendersthe Security Documents, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) such Indebtedness shall be unsecured and if owed by (x) a U.S. Loan Party to a Foreign Subsidiary or (y) a Foreign Subsidiary to the U.S. Borrower or a U.S. Subsidiary and not subject to a First Priority Lien pursuant to the Security Documents, shall be subordinated in respect right of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments payment to support any the payment in full of the foregoing items;
Obligations in a manner consistent with the subordination provisions set forth in Section 7.07 and shall be Subordinated Indebtedness hereunder, (fiii) Indebtedness any payment by any such Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Guarantor to such Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with other Guarantors for whose benefit such assets, goods and services payment is made and (iiiiv) such Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(h) guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted as an Investment under Section 6.06;
(id) (1) unsecured Indebtedness of the U.S. Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of and guaranty obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person U.S. Guarantor in respect of such Indebtedness; provided, that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (Aa) existed matures at least three months after the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (x) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loansthe Term Loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (xb) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinancedTerm Loans, refunded or replaced (without c) does not contain maintenance covenants that are more restrictive than Sections 6.07(a) and 6.07(b) and (d) if guaranteed, is guaranteed only by the U.S. Guarantors; provided, that both immediately prior and after giving effect to any Prepayments the incurrence thereof, (x) no Default or Event of Default shall exist or result therefrom and (y) a Weighted Average Life the U.S. Borrower shall be in compliance with the covenants set forth in Sections 6.07(a) and 6.07(b) after giving pro forma effect to Maturity equal to the incurrence of such Indebtedness and the consummation of any Investment or greater than acquisition, repayment of any Indebtedness or payment or making of any Restricted Payment with the remaining Weighted Average Life to Maturity Net Cash Proceeds thereof, but otherwise excluding the Net Cash Proceeds of any such Indebtedness and (2) any Permitted Refinancings of such Indebtedness;
(e) Indebtedness incurred by any Group Member arising from agreements providing for indemnification, adjustment of purchase price, other compensation or similar obligations (including, Indebtedness consisting of the outstanding Initial Term Loans at deferred purchase price of assets or property acquired in a Permitted Acquisition), in connection with Permitted Acquisitions, permitted Investments or permitted dispositions of any business, assets or Subsidiary of any Group Member;
(f) 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;
(g) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accounts;
(h) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees 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 time,
Borrower or such Guarantor pursuant to this Section 6.01 (other than Sections 6.01(b), 6.01(c), 6.01(d) and 6.01(n)(i)); provided, that if the Indebtedness that is being guarantied pursuant to clause (i) of this Section 6.01(i) is unsecured and/or subordinated to the Obligations, the guaranty shall also be unsecured and/or NY\5627635.16 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, (iii) [reserved],
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(j), 6.01(r) or 6.01(s) to the extent such guaranties are unsecured and otherwise permitted as an Investment under Section 6.06 (other than Section 6.06(q)) and (iv) any Foreign Subsidiary of Indebtedness of any other Foreign Subsidiary;
(j) Indebtedness existing on the Closing Date and drawings in respect of undrawn debt commitments under each agreement, in each case, 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 $150,000,000 (or 1.50% of Consolidated Total Assets, if greater), which is incurred with respect to Capital Leases or constitutes purchase money Indebtedness to finance the case 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, (ii) constituting Attributable Indebtedness with respect to Indebtedness any Sale and Lease-Back permitted under clauses Section 6.10 in an amount not to exceed at any one time outstanding $75,000,000 (m)or 0.75% of Consolidated Total Assets, if greater) or (riii) consisting of obligations with respect to Capital Leases of property, plant and (u) of this Section 6.01, the incurrence thereof shall be without duplication equipment of any amounts outstanding Subsidiary of the U.S. Borrower organized in reliance on the relevant clause,Japan;
(vl) except (i)
(1) Indebtedness of a Person or Indebtedness attaching to assets of a Person that, in either case, becomes a Loan Party or becomes or is merged into or consolidated with a Subsidiary after the case Closing Date or (2) Indebtedness attaching to assets that are acquired by any Group Member after the Closing Date as the result of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loansa Permitted Acquisition; provided, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to existed at the Obligations time such Person became a Loan Party or became or was merged into or consolidated with a Subsidiary or at the time such assets were acquired and, in right of paymenteach case, or was not created in contemplation thereof and (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured guaranteed in any respect by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced Group Member (other than (A) by any terms which are applicable only after such Person that so becomes a Subsidiary or (B) to the then-existing Latest Maturity Date extent any Group Member is otherwise permitted to guaranty such Indebtedness under another provision under this Section 6.01) and (ii) any Permitted Refinancing thereof;
(m) Indebtedness of the type described in clause (viii) of the definition thereof with respect to interest rates, commodity exposure or foreign exchange rates, or any Treasury Transaction; provided that in each case such Indebtedness)Indebtedness shall not have been entered into for speculation purposes;
(n) (i) Indebtedness incurred by a Securitization Subsidiary in a Qualified Securitization Financing that is not recourse (except for Standard Securitization Undertakings) to any of the Borrowers or the Guarantors, (yii) be conformed (or added) to the Loan Documents for the benefit Indebtedness of the applicable Term Lenders ora Group Member consisting of Standard Securitization Undertakings; provided that, as applicablein each case, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis Net Cash Proceeds with respect to the Secured Obligations hereunder that NY\5627635.16 such Indebtedness are secured on a first lien basis may participate (x) in any voluntary prepayments of used to repay Term Loans and will be applied as set forth in Section 2.11(a)(i2.15(c) and (yiii) Indebtedness incurred with respect to any disposition of accounts receivable in connection with receivables factoring arrangements in the ordinary course of business;
(o) Indebtedness owing to any mandatory prepayments insurance company in connection with the financing of Term Loans as set forth any insurance premiums permitted by such insurance company in Section 2.11(b)the ordinary course of business;
(p) Indebtedness incurred in the ordinary course of business with respect to surety and appeal bonds, performance and insurance bonds and similar obligations;
(q) [reserved]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 such Indebtedness (i) is extinguished within five Business Days of its incurrence or (ii) if in respect of credit or purchase cards, is extinguished within 60 days of its incurrence;
(r) other Indebtedness of the Borrower and/or any Restricted Subsidiary Subsidiaries (other than a Securitization Subsidiary) that are not Loan Parties and Indebtedness incurred on behalf of or representing guaranties of Indebtedness of Joint Ventures in an aggregate outstanding principal amount not to exceed 200at any one time outstanding $125,000,000 (or 1.25% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital StockConsolidated Total Assets, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”if greater);
(s) other Indebtedness of the Borrower and/or any Restricted Subsidiary under Group Member (other than a Securitization Subsidiary) in an aggregate amount not to exceed at any Derivative Transaction not entered into for speculative purposesone time outstanding $375,000,000 (or 3.50% of Consolidated Total Assets, if greater);
(t) Indebtedness arising as a result of (the Borrower and/or any Restricted Subsidiary representing establishment of) a fiscal unity (fiscale eenheid) between (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary European Loan Parties incorporated in the ordinary course of business and Netherlands or (ii) deferred compensation or other similar arrangements Restricted Subsidiaries that are not Loan Parties incorporated in connection with the Transactions, any Permitted Acquisition or any other Investment permitted herebyNetherlands;
(u) Indebtedness pursuant to a declaration of joint and several liability used for the purpose of section 2:403 of the Borrower and/or Dutch Civil Code (and any Restricted Subsidiary in an aggregate outstanding principal amount not residual liability under such declaration arising pursuant to exceed the sum of (isection 2:404(2) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x))Dutch Civil Code);
(v) [reserved]Indebtedness representing the deferred obligation to purchase common stock or common stock options permitted under Section 6.04(c);
(w) [reserved]Indebtedness arising under any domination and/or profit transfer agreement (Beherrschungs und/oder Gewinnabführungsvertrag) with a Restricted Subsidiary incorporated in Germany which is in force on the Closing Date;
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guarantiesguarantees, surety bonds, performance bonds warehouse receipts or similar instruments issued to support performance obligations and trade-related letters of credit (other than obligations in respect of other Indebtedness) in the ordinary course of business;
(y) Indebtedness of the U.S. Borrower in respect of letters of credit issued by the U.S. Borrower for its own account or for the account of any other Group Member; provided that neither NY\5627635.16 the Administrative Agent nor any Lender shall have any direct or indirect liability with respect to any such letter of credit, whether as a guarantor, confirming bank or otherwise;
(z) Indebtedness) incurred by the Borrower and/or any Restricted Subsidiary , if any, in respect of workers compensation claimsthe CKI Obligations and the Itochu Obligations and any Permitted Refinancing of the Itochu Obligations;
(aa) unsecured Indebtedness in respect of obligations of any Group Member to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business, unemployment insurance (including premiums related thereto), other types and not in connection with the borrowing of social security, pension obligations, vacation pay, health, disability money or other employee benefits any Hedge Agreement or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claimsTreasury Transaction;
(bb) Indebtedness representing deferred compensation to employees of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing Group Member incurred in the ordinary course of business;
(and any guarantees and co-borrower obligations cc) Indebtedness incurred as part of the BorrowerPost-Closing Restructuring Transactions, any Restricted Subsidiary that so long as such Indebtedness is a Loanotherwise permitted to be incurred under Section 6.01(c); and
(dd) all premium (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in Sections 6.01(a) through 6.01(cc) above.
Appears in 1 contract
Indebtedness. The Borrower shall not“Indebtedness” means alt debts, nor shall it permit any obligations or liabilities now or hereafter existing, absolute or contingent of its Restricted Subsidiaries toPledgor to Bank, whether voluntary or involuntary, whether due or not due, or whether incurred directly or indirectlyindirectly or acquired by Bank by assignment or otherwise. Indebtedness includes, createwithout limitation, incur, assume or otherwise become or remain liable with respect to all obligations of Pledgor arising under any Indebtedness, except:
(a) the Obligations (including any Additional Term Loans);
(b) Indebtedness of the Borrower to any Restricted Subsidiary and/or of any Restricted Subsidiary to the Borrower and/or any other Restricted SubsidiarySwap Contract; provided, that “Indebtedness” secured by the Deposit Account of Pledgor shall not include obligations arising under any Indebtedness of any Loan Party owed Swap Contract to any Restricted Subsidiary that which it is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note);
(c) [reserved];
(d) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stockparty if, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
(f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(h) guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) Indebtedness that, all or a portion of the Borrower and/or any Restricted Subsidiary consisting guaranty by such Pledgor to Bank of, or the grant by such Pledgor of obligations owing under incentivea security interest to Bank to secure, supplysuch Swap Contract, license or similar agreements entered into would violate the Commodity Exchange Act by virtue of such Pledgor’s failure to constitute an “eligible contract participant” as defined in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed Commodity Exchange Act at the time such Person became a Restricted Subsidiary guaranty or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation grant of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (x) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date security interest becomes effective with respect to such Swap Contract. “Commodity Exchange Act” means 7 U.S.C. Section 1 et seq., as amended from time to time, any successor statute, and any rules, regulations and orders applicable thereto. “Swap Contract” means any 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 now or hereafter entered into between Pledgor and Bank and/or any affiliate of Bank. Unless otherwise agreed in writing, “Indebtedness)” shall not include such debts, (y) obligations or liabilities which are or may hereafter be conformed (or added) “consumer credit” subject to the Loan Documents for the benefit disclosure requirements of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower Federal Truth in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower Lending law or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a Loanregulation promulgated thereunder.
Appears in 1 contract
Indebtedness. The Borrower shall notNo Note 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 (including any Additional Term Loans)Obligations;
(b) 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 any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Permitted Intercompany Note)Investments;
(c) [reserved]Indebtedness consisting of promissory notes issued to current or former officers, directors and employees (or their respective family members, estates or trusts or other entities for the benefit of any of the foregoing) of the Issuer or its Subsidiaries to purchase or redeem Equity Interests or options of Issuer permitted pursuant to Section 6.5(b); provided that the aggregate principal amount of all such Indebtedness shall not exceed One Hundred Thousand Dollars ($100,000) at any time outstanding;
(d) unsecured Indebtedness arising incurred in the ordinary course of business from any agreement agreements not for borrowed money providing for indemnification, adjustment of purchase price indemnification or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder from guarantees or consummated prior to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guaranteesperformance bonds, surety bonds, performance bonds or release, appeal and similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tendersbonds, statutory obligationsobligations or with respect to workers’ compensation claims, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations in each case incurred in the ordinary course of business and securing the performance of Topco or any of its Subsidiaries pursuant to such agreements;
(iie) unsecured Indebtedness 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 protections and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees Accounts incurred in the ordinary course of business, ; provided however that such Indebtedness is extinguished within ten (ii10) Indebtedness incurred in the ordinary course Business Days of business incurrence and/or in respect of cash management obligations of provided by such bank or other financial institution, such Indebtedness is unsecured or has been subordinated to the Borrower and/or any Restricted Subsidiary Obligations in a manner reasonably acceptable to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of businessAdministrative Agent;
(hf) guarantees Guarantees by the Borrower and/or any Restricted a Note Party or a Subsidiary of a Note Party of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect to a Note Party; provided that such Indebtedness is otherwise independently permitted to be incurred pursuant to another clause of this Section 6.01 or other obligations 6.1;
(g) Indebtedness existing on the Closing Date that is listed on Schedule 6.1;
(h) Indebtedness with respect to Capital Lease Obligations and Indebtedness incurred in connection with purchase money Indebtedness in an aggregate principal amount not prohibited by this Agreement; provided that in the case of to exceed $100,000 at any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06time outstanding;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or incurred pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.01Indian Working Capital Facility;
(j) [reserved];to the extent constituting Indebtedness, unsecured obligations arising from the ATM Agreement, the Warrants and any warrants issued in connection with the De-SPAC Transaction and in each case, to the extent not constituting indebtedness for borrowed money; and
(k) unsecured Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into Note Parties other than the types listed in the ordinary course of business;
(la) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of through (ij) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness above in an aggregate outstanding principal amount not to exceed the greater of One Hundred Thousand Dollars ($33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (x) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole100,000) at the any time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a Loanoutstanding.
Appears in 1 contract
Sources: Senior Secured Note Purchase Agreement (Vahanna Tech Edge Acquisition I Corp.)
Indebtedness. The Borrower shall notCreate, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly, createissue, incur, assume assume, become liable in respect of or otherwise become or remain liable with respect suffer to exist any Indebtedness, except:
(a) the Obligations (including Indebtedness of any Additional Term Loans)Loan Party pursuant to any Loan Document;
(b) 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 any Indebtedness of (i) any Loan Party owed owing to any Restricted other Loan Party, and (ii) any Subsidiary that (which is not a Loan Party must be expressly subordinated Guarantor) to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent any other Subsidiary (including pursuant to an Intercompany Notewhich is not a Guarantor);
(c) [reserved];
(d) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations Guarantee Obligations incurred in the ordinary course of business by the Borrowers, Holdings and their respective Subsidiaries of obligations of a Borrower or any Wholly Owned Guarantor, to the extent that the underlying primary Indebtedness to which such Guarantee Obligations relate is itself permitted hereunder;
(iid) Indebtedness outstanding on the date hereof and listed on Schedule 7.2(d) and any Permitted Refinancing Indebtedness in respect thereof;
(e) Indebtedness (including, without limitation, Capital Lease Obligations) secured by Liens permitted by Section 7.3(g) in an aggregate principal amount not to exceed $7,000,000 at any one time outstanding and any Permitted Refinancing Indebtedness in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing itemsthereof;
(f) Surety Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) other Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties banker’s acceptances or similar instruments supporting trade payablesarrangements, warehouse receipts or similar facilities entered into provided that the aggregate amount of any such Indebtedness outstanding at any time shall not exceed $5,000,000;
(g) Subordinated Indebtedness in the ordinary course of businessan aggregate amount not exceeding $5,000,000 at any time;
(h) guarantees by the Borrower and/or any Restricted Subsidiary of unsecured Indebtedness or other obligations of the Borrower or Loan Parties and their respective Subsidiaries in an aggregate principal amount, for all such Indebtedness taken together, not to exceed $5,000,000 at any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06one time outstanding;
(i) Indebtedness obligations (contingent or otherwise) of the Borrower and/or Loan Parties or any Restricted Subsidiary existingof their respective Subsidiaries existing or arising under any Specified Swap Agreement, provided that such obligations are (or pursuant to commitments existing, on the Closing Date were) entered into by such Person in accordance with Section 7.13 and not for purposes of speculation; and, to the extent in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) Indebtedness of a Person (other than a Loan Party or one of their respective Subsidiaries which constituted a Subsidiary prior to 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 consummation of the Borrower and/or any Restricted applicable merger referenced below) existing at the time such Person is merged with or into a Loan Party or a Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; Subsidiary, provided that (i) such Indebtedness (A) existed at the time was not, in any case, incurred by such other Person became a Restricted Subsidiary in connection with, or the assets subject to in contemplation of, such Indebtedness were acquired and (B) was not created merger or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and acquisition, (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower such merger or any Restricted Subsidiary to any stockholder of the Borrower or any current or former directoracquisition constitutes a Permitted Acquisition, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (ziii) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (x) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with any such Person who becomes a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) 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 LoansSubsidiary, (A) such Subsidiary is the only obligor in respect of such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement and (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, B) to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and to be secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on only the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to Subsidiary secure such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a Loan.
Appears in 1 contract
Indebtedness. The Borrower shall Loan Parties will not, nor shall it and will not permit any of its Restricted their Subsidiaries to, directly or indirectly, at any time create, incur, assume or otherwise become or remain liable with respect suffer to exist any Indebtedness, exceptincluding the issuance of any Disqualified Equity Interests, other than:
(a) Indebtedness under the Obligations (including any Additional Term Loans)Loan Documents;
(b) Indebtedness existing on the Amendment No. 36 Effective Date and set forth in Schedule 8.1(b);
(c) Indebtedness (including Capitalized Lease Obligations and purchase money Indebtedness) to finance all or any part of the Borrower purchase, lease, construction, installment, repair or improvement of property, plant or equipment or other fixed or capital assets, in an aggregate principal amount not to exceed $105,000,000 at any Restricted Subsidiary and/or time outstanding, and any Refinancing Indebtedness in respect of any Restricted Subsidiary such Indebtedness; provided that such Indebtedness is incurred within ninety (90) days after the purchase, lease, construction, installation, repair or improvement of the property that is the subject of such Indebtedness;
(d) Bank Product Obligations (other than arising under Hedging Agreements) and Indebtedness under Permitted Hedging Agreements;
(e) to the Borrower and/or extent constituting Indebtedness, any other Restricted Subsidiary; providedPermitted Intercompany Investment;
(f) Indebtedness in respect of performance bonds, that any bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case, provided in the ordinary course of business;
(g) guarantees of Indebtedness of any the Loan Party owed Parties or their Subsidiaries permitted to any Restricted be incurred under this Agreement; provided that (x) if the Indebtedness being guaranteed is subordinated to the Obligations, such guarantee shall be subordinated to the guarantee of the Obligations on terms at least as favorable to the Lenders as those contained in the subordination of such Indebtedness and (y) no Subsidiary that is not a Loan Party must be expressly subordinated to shall guarantee the Obligations Indebtedness of such any Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note)Party;
(ch) [reserved];
(d) any Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, loan or grant programs made available to any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof Loan Party or any other purchase of assets their Subsidiaries under any financial support or Capital Stockfunding program sponsored, and Indebtedness arising from guaranteesfunded, letters of creditor guaranteed, bank guaranteesin whole or in part, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or by any such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
(f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise Dutch Governmental Authority in connection with Cash management and Deposit Accountsthe COVID-19 pandemic (including without limitation, including incentive, supplier finance or similar programsthe NOW regime) in an aggregate amount not to exceed $250,000 at any time outstanding;issuances of Equity Interests permitted pursuant to Section 8.5;
(i) guarantees by the Borrower and/or any Restricted Subsidiary endorsement of the obligations of suppliers, customers and licensees negotiable instruments for deposit or collection in the ordinary course of business, ;
(iij) 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(i) overdraft facilities, employee credit card programs, purchasing card programs, netting services, CRE Finance Assets or Real Estate Investments or progress payments automatic clearinghouse arrangements and other Cash Management Services and similar arrangements, and in connection with such assets, goods securities and services commodities arising in connection with the acquisition or disposition of Permitted Investments and (iii) Indebtedness not any obligation in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(h) guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary connection with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiumsmargin financing, (ii) take-or-pay obligations contained up to $3,000,000 in supply arrangementsthe aggregate of bankers’ acceptance, bank guarantees or letter of credit facilities, in each case, in the ordinary course of business and/or business, (iii) the endorsement of instruments for deposit or the financing of insurance premiums, (iv) deferred compensation or similar arrangements to the employees of the Loan Parties or any of their Subsidiaries, (v) obligations to reacquire assets pay insurance premiums or inventory take or pay obligations contained in connection with customer financing arrangements supply agreements and (vi) Indebtedness owed to any Person providing property, casualty, business interruption or liability insurance to any Loan Party or any of its Subsidiaries, so long as such Indebtedness shall not be in excess of the ordinary course amount of businessthe unpaid cost of, and shall be incurred only to defer the cost of the annual premium for such insurance;
(mk) the First Lien Term Loan Obligations in an(and Refinancing Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness thereto) in an aggregate outstanding a principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets Term Loan Cap (as of defined in the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial CovenantsIntercreditor Agreement)$225,000,000;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (x) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(ql) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a Loan
Appears in 1 contract
Sources: Credit Agreement (Team Inc)
Indebtedness. The Borrower shall notNo 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 (including any Additional Term Loans)Obligations;
(bi) Indebtedness of any Subsidiary Guarantor to the Borrower or to any other Subsidiary Guarantor, or of the Borrower to any Restricted Subsidiary and/or of any Restricted Subsidiary Guarantor; provided (ii) all such Indebtedness shall be evidenced by intercompany promissory notes and all such notes shall be subject to a First Priority Lien pursuant to the Borrower and/or any other Restricted Subsidiary; providedPledge and Security Agreement, that any (iii) all such Indebtedness shall be unsecured and subordinated in right of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated payment to the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such Loan Party on terms that are case is reasonably acceptable satisfactory to the Administrative Agent and (including iv) any Indebtedness owed by a Foreign Subsidiary to a Loan Party; provided that (v) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a First Priority Lien pursuant the Pledge and Security Agreement and (vi) the aggregate outstanding principal amount of Indebtedness of, and the aggregate amount of Investments in, Foreign Subsidiaries pursuant to an Intercompany Notethis Section 6.01(b)(iv), Section 6.01(j), Section 6.01(q) and Section 6.07(g) shall not exceed $60,000,000 at any time outstanding;
(c) [reserved]the Senior Subordinated Notes;
(d) Indebtedness incurred by the Borrower or any of its Subsidiaries arising from any agreement agreements providing for indemnification, adjustment of purchase price or similar obligations, contingent earnout obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunderAsset Sales or other sales or purchases of assets, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof from guaranties or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, bonds or performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any such agreementbusiness, assets or Subsidiary of the Borrower or any of its Subsidiaries;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) which may be deemed to exist pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contractsany guaranties or performance, surety, staystatutory, customs, appeal, performance and/or return of money bonds appeal or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
(f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(hf) guarantees Indebtedness in respect of Banking Services Obligations and other netting services, overdraft protections and otherwise in connection with Deposit Accounts;
(g) guaranties of the obligations of suppliers, customers, franchisees and licensees by the Borrower and/or any Restricted and its Subsidiaries in the ordinary course of business and consistent with past practice;
(h) guaranties by the Borrower of Indebtedness or other obligations of a Subsidiary Guarantor or guaranties by a Subsidiary of the Borrower of Indebtedness or other obligations of the Borrower or any Restricted a Subsidiary Guarantor with respect respect, in each case, to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that (x) no Guarantee by Holdings or any Subsidiary of any Indebtedness permitted pursuant to Section 6.01(w), the Senior Subordinated Notes, any Junior Financing, any Permitted First Priority Refinancing Debt, any Permitted Second Priority Refinancing Debt, any Permitted Unsecured Refinancing Debt or any Permitted Refinancing of any of the foregoing shall be permitted unless such guaranteeing party shall have also provided a Guarantee of the Obligations on the terms set forth herein and (y) if the Indebtedness being Guaranteed is Junior Financing, such Guarantee shall be subordinated to the Guarantee of the Obligations on terms at least as favorable to the Lenders as those contained in the case subordination of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06such Junior Financing;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent described in excess of $6,000,000 described on Schedule 6.016.01(i);
(j) [reserved]the Borrower’s Foreign Subsidiaries may become and remain liable with respect to Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness of, and the aggregate amount of Investments in, Foreign Subsidiaries pursuant to Section 6.01(b)(iv), this Section 6.01(j), Section 6.01(q) and Section 6.07(g) shall not exceed $60,000,000 at any time outstanding;
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in and its Subsidiaries with respect to the ordinary course of business▇▇▇▇▇▇▇ Distribution Center Permanent Financing;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations Capital Leases and purchase money Indebtedness, in each case incurred within 180 days of the acquisition or completion of construction or installation of the assets acquired in connection with the incurrence of such Indebtedness in an aggregate outstanding principal amount not to exceed $50,000,000 at any time outstanding (including any Indebtedness acquired in connection with a Permitted Acquisition); provided any such Indebtedness (i) shall be secured only to the greater asset acquired in connection with the incurrence of $33,000,000 such Indebtedness and 0.75(ii) shall constitute not less than 50% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance aggregate consideration paid with the Financial Covenantsrespect to such asset;
(n) Indebtedness of any a Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder a Permitted Acquisition after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) thereof and (ii) the Borrower is in pro forma compliance with the Financial Covenantsaggregate amount of such Indebtedness shall not exceed $50,000,000 at any time outstanding;
(o) Indebtedness consisting of promissory notes issued by Holdings owed to stockholders to repurchase stock or options from such stockholders; provided that (i) such Indebtedness shall be subordinated in right of payment to the Borrower Obligations on terms and conditions satisfactory to the Administrative Agent and the Arrangers, (ii) matures after the Maturity Date, (iii) requires no scheduled payment of principal or cash interest payments prior to its maturity and (iv) the aggregate amount of such Indebtedness shall not exceed $20,000,000 in any Restricted Subsidiary Fiscal Year and $50,000,000 in the aggregate from the Closing Date to any stockholder the date of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a)determination;
(p) the Borrower and its Subsidiaries may become and remain liable for any Indebtedness refinancing, refunding replacing or replacing refinancing any Indebtedness permitted under clauses (ac), (i), (k), (m), (n), (r), (u) and (zv) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof6.01; provided that:
that (i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded refinanced 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), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to on or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded refinanced or replaced and (B) subject a weighted average life 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 maturity equal to or greater than the remaining Weighted Average Life weighted average life to Maturity maturity of the Indebtedness being refinancedrefinanced or replaced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m)covenants, (r) defaults and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower)prepayment provisions, taken as a whole, are not more burdensome or restrictive on the Borrower and its Subsidiaries than those applicable to the Indebtedness being refinanced or replaced, (iv) such Indebtedness is secured only by Liens permitted under Section 6.02 for the Indebtedness being refinanced or replaced, (v) such Indebtedness is incurred by the Borrower or the Subsidiary that is the obligor on the Indebtedness being refinanced or replaced, (vi) if the Indebtedness being refinanced or replaced is subordinated to the Obligations, such Indebtedness is subordinated to the Obligations on terms not less favorable to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced or replaced and (as determined by vii) Indebtedness of the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as or a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders Subsidiary shall not require the consent refinance Indebtedness of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b)an Unrestricted Subsidiary;
(q) [reserved]Foreign Subsidiaries may become and remain liable with respect to Indebtedness in respect of other commercial letters of credit obtained in the ordinary course of business; provided that the aggregate outstanding principal amount of Indebtedness of, and the aggregate amount of Investments in, Foreign Subsidiaries pursuant to Section 6.01(b)(iv), Section 6.01(j), this Section 6.01(q) and Section 6.07(g) shall not exceed $60,000,000 at any time outstanding;
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale guaranties by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale Indebtedness of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount Foreign Subsidiary that is permitted to incur a transaction (the amount of any Net Proceeds or contribution utilized be incurred pursuant to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”Section 6.01(j);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not Hedge Agreements entered into for the purpose of hedging risks associated with Holdings’ and its Subsidiaries’ operations and not for speculative purposes;
(t) Indebtedness contingent obligations in respect of the Borrower and/or any Restricted Subsidiary representing corporate leases assigned, sold or otherwise transferred (i) deferred compensation to current set forth on Schedule 6.01(t) or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation incurred or other similar arrangements created after the date hereof in connection with the Transactions, any Permitted Acquisition or any other Investment permitted herebysale 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 of the Borrower and/or any Restricted Subsidiary and its Subsidiaries in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) 60,000,000 at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)))time outstanding;
(v) [reserved]Indebtedness if the Interest Coverage Ratio is at least 2.00 to 1.00, determined on a Pro Forma basis after giving effect to the incurrence of such Indebtedness;
(w) [reserved]Indebtedness incurred pursuant to the Senior Secured Asset-Based Revolving Credit Facility by the Borrower or any Subsidiary; provided that immediately after giving effect to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (w) then outstanding does not exceed the greater of (A) $450,000,000 and (B) the Borrowing Base at such time;
(x) [reserved];Indebtedness incurred in connection with Sale-Leaseback Transactions permitted pursuant to Section 6.11; and
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect without duplications of letters any other Indebtedness, non-cash accruals of creditinterest, bank guaranties, surety bonds, performance bonds accretion or similar instruments amortization of original issue discount and payment-in-kind interest with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;hereunder.
(bbi) Indebtedness Permitted Unsecured Refinancing Debt of any Restricted Subsidiary that is not a Loan Party under and (ii) any Asset Financing Facility or CRE Financing Permitted Refinancing thereof; and
(i) Permitted First Priority Refinancing Debt and Permitted Second Priority Refinancing Debt, in each case of a Loan Party and (ii) any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a LoanPermitted Refinancing thereof.
Appears in 1 contract
Indebtedness. The Borrower No Loan Party shall, or shall not, nor shall it permit any of its Restricted Subsidiaries to, incur, create, assume, become or be liable in any manner with respect to, or permit to exist, any Indebtedness, or guarantee, assume, endorse, or otherwise become responsible for (directly or indirectly), createthe Indebtedness, incurperformance, assume obligations or otherwise become or remain liable with respect to dividends of any Indebtednessother Person, except:
(a) the Obligations (including any Additional Term Loans)Obligations;
(b) purchase money Indebtedness (including Capital Leases) arising after the Effective Date to the extent secured by purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages on Real Property so long as such security interests and mortgages do not apply to any property of such Loan Party or Subsidiary other than the Equipment or Real Property so acquired, and the Indebtedness secured thereby does not exceed the cost of the Borrower to Equipment or Real Property so acquired, as the case may be;
(c) guarantees by any Restricted Loan Party or any Subsidiary and/or of any Restricted Subsidiary to Loan Party of the Borrower and/or any other Restricted Subsidiary; provided, that any Obligations;
(d) the Indebtedness consisting of (i) intercompany loans and advances permitted under Section 9.10(g) hereof and (ii) trade payables permitted under Section 9.10(n) hereof;
(e) unsecured Indebtedness of any Loan Party owed or any Subsidiary of any Loan Party arising after the date hereof to any Restricted third person (but not to any other Loan Party or any Subsidiary of any Loan Party or any of their Affiliates unless otherwise permitted under this Section 9.9), provided, that, each of the following conditions is satisfied as determined by Agent: (i) such Indebtedness shall be on terms and conditions acceptable to Agent and shall be subject and subordinate in right of payment to the right of the Agent Parties to receive the prior indefeasible payment and satisfaction in full payment of all of the Obligations pursuant to the terms of an intercreditor agreement between the applicable Agent Parties and such third party, in form and substance satisfactory to Agent; provided, that, if any such Indebtedness is to be issued pursuant to an indenture that is not a Loan Party must be expressly subordinated subject to the Obligations Trust Indenture Act of 1939, as amended, the subordination terms set forth in such indenture shall be acceptable if substantially identical to those terms of subordination set forth in Article 10 of the 2001 Notes Indenture, (ii) Agent shall have received not less than ten (10) days prior written notice of the intention of such Loan Party on terms that are reasonably acceptable or Subsidiary to incur such Indebtedness, which notice shall set forth in reasonable detail satisfactory to Agent the amount of such Indebtedness, the person or persons to whom such Indebtedness will be owed, the interest rate, the Schedule of repayments and maturity date with respect thereto and such other information as Agent may request with respect thereto, (iii) Agent shall have received true, correct and complete copies of all agreements, documents and instruments evidencing or otherwise related to such Indebtedness, (iv) except as Agent may otherwise agree in writing, all of the proceeds of the loans or other accommodations giving rise to such Indebtedness shall be paid to the Administrative Agent for application to the Obligations, (including v) as of the date of incurring such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or have occurred, (vi) such Loan Party or Subsidiary shall not, directly or indirectly, (A) amend, modify, alter or change the terms of such Indebtedness or any agreement, document or instrument related thereto, except, that, such Loan Party or Subsidiary may, after prior written notice to Agent, amend, modify, alter or change the terms thereof so as to extend the maturity thereof, or defer the timing of any payments in respect thereof, or to forgive or cancel any portion of such Indebtedness (other than pursuant to an Intercompany Notepayments thereof);
, or to reduce the interest rate or any fees in connection therewith, or (cB) [reserved];
redeem, retire, defease, purchase or otherwise acquire such Indebtedness (dexcept pursuant to regularly scheduled payments permitted herein), or set aside or otherwise deposit or invest any sums for such purpose, (vii) Indebtedness arising from any agreement providing for indemnificationLoan Parties shall, adjustment of purchase price and shall cause their Subsidiaries to, furnish to Agent all notices or similar obligations (including contingent earn-out obligations) incurred demands in connection with such Indebtedness either received by any Disposition permitted hereunderLoan Party or Subsidiary or on its behalf promptly after the receipt thereof, or sent by any acquisition permitted hereunder Loan Party or consummated prior to Subsidiary or on its behalf concurrently with the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stocksending thereof, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing as the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing itemscase may be;
(f) the Indebtedness set forth on Schedule 9.9 to the Information Certificate; provided, that, (i) Loan Parties and their Subsidiaries may only make regularly scheduled payments of the Borrower and/or any Restricted Subsidiary principal and interest in respect of commercial credit cardssuch Indebtedness in accordance with the terms of the agreement or instrument evidencing or giving rise to such Indebtedness as in effect on the Original Closing Date (ii) no Loan Party shall, stored value cardsor shall permit any of its Subsidiaries to, purchasing cardsdirectly or indirectly, treasury management services(A) amend, netting servicesmodify, overdraft protectionsalter or change the terms of such Indebtedness or any agreement, check drawing servicesdocument or instrument related thereto as in effect on the Original Closing Date except, automated payment services that, Loan Parties and their Subsidiaries may, after prior written notice to Agent, amend, modify, alter or change the terms thereof so as to extend the maturity thereof, or defer the timing of any payments in respect thereof, or to forgive or cancel any portion of such Indebtedness (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network servicesother than pursuant to payments thereof), employee credit card programs, cash pooling services and or to reduce the interest rate or any arrangements or services similar to any of the foregoing and/or otherwise fees in connection with Cash management and Deposit Accountstherewith, including incentiveor (B) redeem, supplier finance retire, defease, purchase or similar programs;
otherwise acquire such Indebtedness, or set aside or otherwise deposit or invest any sums for such purpose except as provided in clause (i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliersabove, customers and licensees in the ordinary course of business(iii) Loan Parties shall, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary and shall cause their Subsidiaries to, furnish to pay the deferred purchase price of goods, services, CRE Finance Assets Agent all notices or Real Estate Investments or progress payments demands in connection with such assetsIndebtedness either received by any Loan Party or Subsidiary or on its behalf, goods and services and promptly after the receipt thereof, or sent by any Loan Party or Subsidiary or on its behalf, concurrently with the sending thereof, as the case may be;
(iiig) Indebtedness in respect incurred under credit cards issued to employees, agents, officers, directors, or other Affiliates of letters any Loan Party or any Subsidiary of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into any Loan Party in the ordinary course of business;
(h) guarantees by the Borrower and/or any Restricted Subsidiary Indebtedness incurred as a result of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that overdrafts in the case ordinary course of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06business which shall not be outstanding for more than two (2) Business Days;
(i) Indebtedness consisting of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, liens permitted by subsections (a) through (n) of Section 9.8 to the extent not already described in excess of $6,000,000 described on Schedule 6.01this Section 9.9;
(j) [reserved];
(k) Indebtedness guarantees constituting endorsement of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license negotiable instruments for deposit or similar agreements entered into collection in the ordinary course of business;
(lk) Hedging Agreements of any Loan Party or any Subsidiary of any Loan Party in respect of Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of permitted hereunder; provided, that, (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary of entering into any Hedging Agreement, no Event of Default exists or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) would result after giving effect thereto and (ii) the Borrower is transactions contemplated by such Hedging Agreement are bona fide hedging activities for the purpose of mitigation risks to which Loan Parties and their Subsidiaries are exposed in pro forma compliance with the Financial Covenantsconduct of their business or the management of their liabilities;
(ol) Indebtedness consisting of promissory notes issued assumed by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower a Loan Party or any Subsidiary (of any Loan Party in connection with a Permitted Acquisition of assets of a Person after the Original Closing Date or their respective Immediate Family Members) to finance in connection with a Permitted Acquisition after the purchase or redemption Original Closing Date of Capital Stock any Person which becomes a Subsidiary of Parent after the Borrower permitted by Section 6.04(a);
(p) Original Closing Date, which Indebtedness refinancingin all such cases exists at the time of such Acquisition and is not created in contemplation of such event; provided, refunding or replacing any Indebtedness permitted under clauses (a)that, (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (x) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is was not secured by Receivables or Inventory so acquired, (ii) recourse for any Indebtedness incurred pursuant to an Acquisition shall only by Permitted Liens at be against the time Person acquired pursuant to such Acquisition or the applicable Loan Party or Subsidiary which acquired assets pursuant to such Acquisition, (iii) Loan Parties and their Subsidiaries may only make regularly scheduled payments of principal and interest in respect of such refinancing, refunding Indebtedness in accordance with the terms of the agreement or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, instrument evidencing or giving rise to the extent the Liens securing such Indebtedness were contractually subordinated at time as in effect on the Original Closing Date, (iv) no Loan Party shall, or shall permit any of its Subsidiaries to, directly or indirectly, (A) amend, modify, alter or change the terms of such refinancing to the Liens Indebtedness or any agreement, document or instrument related thereto as in effect on the Collateral securing Original Closing Date except, that, Loan Parties and their Subsidiaries may, after prior written notice to Agent, amend, modify, alter or change the Initial Term Loansterms thereof so as to extend the maturity thereof, or defer the Liens securing timing of any payments in respect thereof, or to forgive or cancel any portion of such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrowerpayments thereof), taken as a wholeor to reduce the interest rate or any fees in connection therewith, to the Lenders than those applicable to the Liens securing the Indebtedness being refinancedor (B) redeem, refunded retire, defease, purchase or replaced, taken as a wholeotherwise acquire such Indebtedness, or set forth inaside or otherwise deposit or invest any sums for such purpose, and (v) Loan Parties shall, and shall cause their Subsidiaries to, furnish to Agent all notices or demands in connection with such Indebtedness either received by any Loan Party or Subsidiary or on its behalf, promptly after the receipt thereof, or otherwise subject tosent by any Loan Party or Subsidiary or on its behalf, an Acceptable Intercreditor Agreementconcurrently with the sending thereof, as the case may be;
(m) additional Indebtedness incurred by a Foreign Subsidiary (including, without duplication in calculating the $120,000,000 maximum amount in clause (iii) below, guarantees of such Indebtedness by another Foreign Subsidiary) to any Person (other than to a Loan Party or a Subsidiary of a Loan Party); provided, that, (Bi) at the time of and after giving effect to such incurrence of Indebtedness, no Event of Default shall have occurred and be continuing, (ii) recourse for any such Indebtedness shall only be against such Foreign Subsidiary and any other Foreign Subsidiary that is a guarantor thereof and (iii) the aggregate amount of such Indebtedness (together with all Indebtedness incurred by Foreign Subsidiaries under Sections 9.9(b), (e), (l) and (o) hereof) that may be outstanding at any one time shall not exceed $120,000,000.
(n) Indebtedness of Parent consisting of its guarantee of the obligations under that certain Lease Agreement dated in April, 2002 (the “Mexico Lease”) between Matamoros Industrial Partners II, L.P. and Parent; provided, that, (i) such guarantee shall only be in effect upon the assignment of the Mexico Lease by Parent to its Affiliates and (ii) the guaranteed obligations of Parent under the Mexico Lease shall not exceed the tenant’s obligations under the Mexico Lease as in effect on the Original Closing Date for any fiscal year;
(o) other unsecured Indebtedness incurred after the Original Closing Date and not otherwise permitted hereunder in an aggregate principal amount not exceeding $5,000,000 at any one time outstanding; provided, that, (i) at the time of and after giving effect to such incurrence of Indebtedness no Event of Default shall exist and (ii) the Agent shall have received two (2) Business Days’ prior written notice of any Indebtedness to be incurred by a Loan Party or any Subsidiary of a Loan Party hereunder which notice shall designate this Section 9.9(o) as the authority under which such Person is incurring such Indebtedness and stating the unused portion of Indebtedness remaining under this Section 9.9(o) after giving effect to such Indebtedness to be incurred;
(p) extensions, renewals or refinancings by any Loan Party or any Subsidiary of any Loan Party of any Indebtedness permitted under this Section 9.9 so long as (i) such Indebtedness (“Refinancing Indebtedness”) is incurred by in an original aggregate principal amount not greater than the obligor or obligors in respect aggregate principal amount of the Indebtedness being extended, renewed or refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (Cii) if the Indebtedness being refinancedextended, refunded renewed or replaced was expressly contractually refinanced is subordinated to any of the Obligations, such Refinancing Indebtedness is subordinated to the Obligations in right on terms not less favorable to the Lenders than the terms of paymentthe subordination provisions governing such Indebtedness being extended, renewed or refinanced, (xiii) at the time of and after giving effect to such Indebtedness is contractually subordinated to the Obligations in right renewal or refinancing, no Event of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment Default shall have occurred and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, continuing and (Div) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement NotesRefinancing Indebtedness (including amortization, if not substantially identical interest rates and fees) are no less favorable to those the applicable to Loan Party or Subsidiary than the Indebtedness being refinanced (as determined by the Borrower in good faith)extended, must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (renewed or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b)refinanced;
(q) [reserved]Indebtedness of Parent consisting of its guarantee under that certain Letter of Guaranty executed in the form approved by Agent (the “Bae Guaranty”) to ▇▇▇ ▇▇▇▇ Bae, an individual (“▇▇. ▇▇▇”), of the obligations of Delco Remy Hungary Rt. to ▇▇. ▇▇▇ under that certain Purchase Agreement substantially in the form approved by Agent (the “Bae Purchase Agreement”) entered into between ▇▇. ▇▇▇, as seller, and Delco Remy Hungary Rt., as purchaser, of Capital Stock of Delco Remy Korea Limited; provided, that, (1) no payment shall be made under the Bae Guaranty unless Excess Availability shall be at least $32,500,000 immediately before, and after giving effect to, such payment and (2) the sum of the aggregate amount of payments by (x) Delco Remy Hungary Rt. under the Bae Purchase Agreement and (y) Parent under the Bae Guaranty shall not exceed $8,000,000;
(r) Indebtedness of any Borrower or Obligor consisting of its guarantees of obligations incurred by any Borrower or Obligor organized in the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) United States but only to the common equity of the Borrower and from the issuance and sale extent such obligations are not prohibited by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a LoanAgreement.
Appears in 1 contract
Sources: Loan and Security Agreement (Delco Remy International Inc)
Indebtedness. The Borrower shall Borrowers will not, nor shall it will the Borrower permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create, incur, assume or otherwise become or remain liable with in respect to of any Indebtedness, except:
(a) Indebtedness to the Obligations (including any Additional Term Loans)Lenders hereunder;
(b) Indebtedness Current or long term liabilities of the Borrower to any Restricted Subsidiary and/or Borrowers and the Subsidiaries (other than for borrowed money) incurred in the ordinary course of any Restricted Subsidiary to the Borrower and/or any other Restricted Subsidiary; provided, that any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note)their businesses and in accordance with customary trade practices;
(c) [reserved]Existing Indebtedness of the Borrowers and the Subsidiaries referred to in Schedule 5.7 attached hereto, and renewals and extensions thereof, provided that (i) the aggregate principal amount of such Indebtedness is not at any time increased, and (ii) the interest rate applicable to such Indebtedness shall be a market interest rate as of the time of such renewal or extension;
(d) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreementBorrowers and Subsidiaries secured by Permitted Liens;
(e) To the extent not required to be paid by ss.6.5, Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credittaxes, bank guarantiesassessments, surety bondsgovernmental changes and claims for labor, performance bonds or similar instruments to support any of the foregoing itemsmaterial and supplies;
(f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into taxes arising in the ordinary course of business;
(g) Indebtedness of the Borrowers to each other; and
(h) guarantees Indebtedness in respect of purchase money financing as limited by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreementss.7.2(b); 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;and
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or Borrower to any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted as limited by Section 6.04(ass.7.3(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (x) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a Loan.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Nashua Corp)
Indebtedness. The Borrower shall notNo Loan Party will, nor shall will it permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create, incur, assume Incur any Indebtedness (including Acquired Indebtedness) or otherwise become or remain liable with respect issue any shares of Disqualified Stock; and Company shall not permit any of the Restricted Subsidiaries (other than any Loan Party) to issue any Indebtednessshares of Preferred Stock, except:
(a) the Obligations (including Incurrence by the Company or any Additional Term Loans)Restricted Subsidiary of Indebtedness pursuant to any Loan Document;
(b) Indebtedness of under the Borrower to any Restricted Subsidiary and/or of any Restricted Subsidiary to the Borrower and/or (i) Term Loan Agreement and (ii) any other Restricted Subsidiary; providedsecured loan agreement (“Other Secured Debt Loan Agreement”) and related documentation, that any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party on terms that are in each case, reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note);
(c) [reserved];
(d) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and documents under this clause (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
(f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(h) guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, solely to the extent in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) the applicable Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower thereunder is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to 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 securedb), collectively, 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“Other Secured Debt Documents”), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of in an aggregate original principal amount under this clause (ii)), such Indebtedness has (Ab) subject not to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (andexceed $350,000,000; provided that, in the case of revolving Indebtednessthe Other Secured Debt, does not require mandatory commitment reductions, if any, prior to) any Lien on the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject ABL Priority Collateral shall be junior to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance Liens on the relevant clause,
(v) except in ABL Priority Collateral securing the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, Obligations pursuant to the extent ABL Intercreditor Agreement, an Other Secured Debt Intercreditor Agreement and/or a junior lien intercreditor agreement or collateral trust agreement reasonably satisfactory to the Administrative Agent and the Required Lenders reflecting the junior-lien status of the Liens securing such Indebtedness were contractually subordinated at time of such refinancing as it relates to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b)ABL Priority Collateral;
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a Loan
Appears in 1 contract
Indebtedness. The Borrower shall notCreate, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly, createissue, incur, assume assume, become liable in respect of or otherwise become or remain liable with respect suffer to exist any IndebtednessIndebtedness thereof, except:
(a) the Obligations (including Indebtedness of any Additional Term Loans)Loan Party pursuant to any Loan Document;
(b) intercompany Indebtedness of among the Borrower and its Restricted Subsidiaries incurred pursuant to any Restricted Subsidiary and/or of any Restricted Subsidiary to the Borrower and/or any other Restricted SubsidiaryInvestment permitted by Section 7.6(f), (l), (m) or (o); provided, provided that any Indebtedness of any owed by a Loan Party owed to any a Restricted Subsidiary that is not a Loan Party must shall be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note);Obligations.
(c) [reserved];
(d) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations Guarantee Obligations incurred in the ordinary course of business or with respect to Indebtedness permitted pursuant to this Agreement;
(d) Indebtedness outstanding on the Closing Date and listed on Schedule 7.1(d);
(e) Indebtedness (including Capital Lease Obligations) secured by Liens permitted by Section 7.2(g) in an aggregate outstanding principal amount not to exceed at any time the greater of (x) $50,000,000 and (iiy) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any 30% of the foregoing itemsConsolidated Assets determined as of the last day of the most recent fiscal period for which financial statements have been delivered hereunder prior to the incurrence thereof;
(f) Indebtedness of the Borrower and/or or any Restricted Subsidiary Subsidiaries in respect of commercial credit cardsworkers’ compensation claims, stored value cardsself-insurance obligations, purchasing cardscustoms, treasury management servicesappeal, netting servicesperformance, overdraft protectionsbid and surety bonds and completion guaranties, check drawing servicesdeferred insurance premiums, automated payment services (including depositoryand similar obligations, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into each case in the ordinary course of business;
(hg) guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 Subsidiaries arising from the honoring by a bank or other obligations not prohibited financial institution of a check, draft or similar instrument inadvertently drawn by this Agreement; provided that the Borrower or such Restricted Subsidiary in the case ordinary course of any Guarantee by any Loan Party business against insufficient funds, so long as such Indebtedness is promptly repaid; #96545445v8
(h) letters of credit issued for the account of the obligations Borrower or any Restricted Subsidiaries, so long as such letters of any non-Loan Party, the related Investment is credit are secured by Liens permitted under Section 6.067.2(s);
(i) Indebtedness of a joint venture as long as such Indebtedness is non-recourse to the Borrower and/or or any other Restricted Subsidiary existingof the Borrower (other than a Restricted Subsidiary the sole assets of which are the equity interests in one or more joint ventures); provided that notwithstanding the foregoing joint ventures may create, incur or pursuant to commitments existing, on the Closing Date and, assume Indebtedness with recourse to the extent in excess Borrower or any other Restricted Subsidiary of the Borrower not to exceed the greater of (x) $6,000,000 described on Schedule 6.0125,000,000 and (y) 15% of Consolidated EBITDA of the Borrower for the period of four consecutive fiscal quarters most recently ended for which financial statements have been delivered hereunder prior thereto;
(j) [reserved]Indebtedness incurred by any Foreign Subsidiary in an aggregate outstanding principal amount for all such Foreign Subsidiaries at the close of business on any day not to exceed the greater of (x) $25,000,000 and (y) 15% of Consolidated EBITDA of the Borrower for the period of four consecutive fiscal quarters most recently ended for which financial statements have been delivered hereunder prior thereto;
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after Loan Party secured by Liens on the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness Collateral permitted under clauses (a), (i), (m), (n), (r), (uSection 7.2(u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (x) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing junior to the Liens on the Collateral securing the Initial Term LoansObligations and containing, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option faith judgment of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions for similarly situated companies (taken as a whole) at but which terms and conditions shall not directly and explicitly restrict the time ability of incurrence the Group Members to perform their obligations under the Loan Documents in any material respect or issuance (as determined by the ability of the Borrower in good faithto repay the Loans); it being understood and agreed provided that (i) no Event of Default exists or would result from the incurrence thereof, (ii) immediately after giving effect to the incurrence of any such Indebtedness that is pari passu with and the Initial Term Loans hereunder in right use of payment and secured by proceeds thereof (without netting 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(bcash proceeds thereof);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a Loan
Appears in 1 contract
Indebtedness. The Borrower Credit Parties shall not, nor and shall it not permit any of its Restricted Subsidiaries Subsidiary to, incur, create, contract, waive, assume, have outstanding, guarantee or otherwise be or become liable, directly or indirectly, create, incur, assume or otherwise become or remain liable with in respect to of any Indebtedness, exceptexcept for:
(a) the Obligations arising out of or in connection with this Agreement and the other Credit Documents (including any Additional Term LoansIndebtedness incurred pursuant to Section 2.19 and Section 2.21);
(b) 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 any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note);
(c) [reserved];
(d) Indebtedness arising from any agreement providing current liabilities 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 Taxes and not in contemplation thereof or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations assessments incurred in the ordinary course of business business,
(a) Indebtedness of Foreign Subsidiaries that, when added together with any other Indebtedness incurred under this clause (x) and then outstanding, will not exceed the greater of (x) $20,000,000 40,000,000 and (iiy) in respect 35.0% of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing itemsConsolidated Total Assets;
(fb) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees incurrence by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(h) guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the a Borrower or any of its Restricted Subsidiary with respect Subsidiaries of Permitted Refinancing Debt in exchange for, or the net cash proceeds of which are used to extend, refinance, renew, replace, defease or refund Indebtedness otherwise permitted to be that was 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 6.066.2;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(oc) Indebtedness consisting of promissory notes or similar Indebtedness issued by the Borrower Parent or any of its Restricted Subsidiary Subsidiaries to any stockholder of the Borrower or any current current, future or former directorofficers, officermanagers, employeeand employees thereof, member of management, manager or consultant of the Borrower or any Subsidiary (or to their respective Immediate Family Members) estates, spouses or former spouses, in each case to finance the purchase or redemption of Capital Stock of the Borrower permitted by Parent or a Restricted Subsidiary to the extent described in Section 6.04(a6.6(f);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(id) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except incurrence 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), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and of unsecured Indebtedness, or issuance of Redeemable Stock by a Borrower (iiin addition to Indebtedness or Redeemable Stock otherwise permitted hereunder) in an aggregate principal amount (or accreted value, as applicable) that, when added to all other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount Indebtedness incurred pursuant to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (raa) and then outstanding, will not exceed $50,000,000;
(e) the incurrence by a Borrower or any of its Restricted Subsidiaries of Indebtedness, or issuance of Redeemable Stock by a Borrower in an aggregate principal amount or liquidation preference up to 100% of the net cash proceeds received by a Borrower since immediately after the date of the Senior Notes Indenture from the issuance or sale of Capital Stock of a Borrower or cash contributed to the capital of a Borrower to the extent such net cash proceeds have not been applied to make Restricted Payments or to make other Investments, payments or exchanges pursuant to Section 6.6 or to make Permitted Investments (other than Permitted Investments specified in clauses (b), a “Contribution Indebtedness Amount”(g) and (h) of Section 6.3);
(sf) the Borrowers and their Restricted Subsidiary may (x) incur unsecured Indebtedness (including Assumed Indebtedness) and the Borrowers and their Restricted Subsidiaries may issue shares of Redeemable Stock if the Fixed Charge Coverage Ratio for the Parent’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Redeemable Stock is issued would have been at least 2.00 to 1.00, determined on a Pro Forma Basis (including a pro forma application of the net cash proceeds therefrom, including the effect of acquisitions or repayments or redemptions of Indebtedness to be funded by such proceeds), as if the additional Indebtedness had been incurred, or the Redeemable Stock had been issued, as the case may be, at the beginning of such four-quarter period and (y) incur Assumed Indebtedness in an amount equal to (i) the EBITDA of the entity acquired by a Restricted Subsidiary pursuant to a Permitted Investment or other Investment permitted hereunder multiplied by (ii) five;
(g) the Borrowers and their Restricted Subsidiary may incur unsecured Indebtedness (including Assumed Indebtedness) and the Borrowers and their Restricted Subsidiaries may issue shares of Redeemable Stock in an unlimited amount so long as the Payment Conditions have been satisfied, determined on a Pro Forma Basis as if such unsecured Indebtedness has been incurred or such Redeemable Stock has been issued, as the case may be, at the end of the last fiscal quarter for which financial statements are required to be delivered pursuant to Section 5.1(a);
(h) Indebtedness of any Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary; provided that (A) such Indebtedness is not created in anticipation of such a redesignation and (B) the Borrower and/or aggregate principal amount of such Indebtedness incurred under this clause (ee) does not exceed at any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;time the greater of (x) $20,000,00040,000,000 and (y) and 35.0% of Consolidated Total Assets; and
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current the incurrence by the Parent or former directors, officers, employees, members any of management, managers, its Restricted Subsidiaries of Indebtedness (including Capital Leases and consultants purchase money obligations) incurred for the purpose of financing (or refinancing) all or any part of the Borrower and/or any Restricted Subsidiary purchase price or cost of construction or improvement of Property (real or personal), plant or equipment used in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Parent or such Restricted Subsidiary in an aggregate outstanding principal amount that, when added to all other Indebtedness incurred pursuant to this clause (2) and then outstanding, will not to exceed the sum of (iA) the greater of (x) $140,000,000 20,000,000 and 3.2(y) 3.0% of Consolidated Total Assets as of the last day of the most recently ended Test PeriodAssets, plus (iiB) at the election amount of any fees and expenses incurred in connection with any refinancing. Notwithstanding anything to the Borrower (and without duplication)contrary set forth herein, any amount reallocated no Credit Party shall be permitted to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of creditcreate, bank guarantiesincur, surety bondsassume, performance bonds guaranty or similar instruments otherwise become or remain directly or indirectly liable with respect to any Indebtedness that is from or of a Subsidiary (for the avoidance of doubt, excluding any Standard Securitization Undertakings) that is a non-Credit Party or an Unrestricted Subsidiary (such Indebtedness) incurred by the Borrower and/or any Restricted Subsidiary in respect creation, incurrence, assumption or guaranty being referred to as “Non-Credit Party Indebtedness of workers compensation claims, unemployment insurance (including premiums related theretoLoan Parties”), other types in each case, to the extent that the structuring of social security, pension obligations, vacation pay, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness any claims with respect to reimbursementany Indebtedness created, assumed, incurred or guaranteed by such Credit Parties, together with any Non-type obligations regarding workers compensation claims;
(bb) Credit Party Indebtedness of any Restricted Subsidiary that is not a Loan Credit Parties, could reasonably be expected to result in two or more bankruptcy claims against the same Credit Party under any Asset Financing Facility for direct and indirect obligations against the same Credit Party, arising from one transaction or CRE Financing (and any guarantees and coseries of transactions relating to the same underlying Non-borrower obligations Credit Party Indebtedness of Credit Parties. In furtherance of the Borrowerforegoing, each Credit Party agrees that Administrative Agent or any Restricted Subsidiary that is Lender may seek to obtain specific performance or other equitable or injunctive relief to enforce this paragraph against the Credit Parties or any of their non-Credit Party Subsidiaries with respect to breach of this paragraph without posting a Loanbond or presenting evidence of irreparable harm.
Appears in 1 contract
Indebtedness. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly, to create, incur, assume or otherwise become or remain liable with respect to any Indebtedness, except:
(a) the Obligations (including any Additional Term Loans)Secured Obligations;
(b) Indebtedness of (i) the Borrower to Holdings and/or any Restricted Subsidiary and/or of (ii) any Restricted Subsidiary to Holdings, the Borrower and/or any other Restricted Subsidiary; providedprovided that (A) in the case of any Indebtedness of any Restricted Subsidiary that is not a Loan Party owing to the Borrower or any Restricted Subsidiary that is a Loan Party, that the related Investment is permitted under Section 6.06, and (B) any Indebtedness of any Loan Party owed 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 (including pursuant it being understood that the subordination terms set forth in the Intercompany Note are acceptable to an Intercompany Notethe Administrative Agent);
(c) [reserved];
(di) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with the Transactions, any Disposition permitted hereunder, any acquisition or other Investment permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital StockStock or any other Investment, and (ii) Indebtedness arising from guaranteesguaranties, letters of credit, bank guaranteesguaranties, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) as a result of or pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business or pursuant to self-insurance obligations and not in connection with debt for borrowed money and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any 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 Banking Services and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(g) (i) guarantees guaranties by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers customers, franchisees and licensees in the ordinary course of businessbusiness in an aggregate outstanding principal amount not to exceed the greater of $2,500,0005,000,000 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 pay the deferred purchase price of goods, services, CRE Finance Assets goods or Real Estate Investments services or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(h) guarantees Guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or Borrower, any Restricted Subsidiary and/or any joint venture with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent Date; provided that any such Indebtedness or commitment having an outstanding principal amount in excess of $6,000,000 5,000,000 shall be described on Schedule 6.01;
(j) [reserved]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 $350,000,000 and 50% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations Capital Leases and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 350,000,000 and 0.7550% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or and/or Indebtedness assumed in connection with an any acquisition or any other similar investment permitted hereunder after the Closing DateInvestment; provided that 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 contemplation of such the applicable acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and similar Investment, and
(ii) after giving effect to such Indebtedness on a Pro Forma Basis, the Borrower is in pro forma compliance with the Financial CovenantsSection 6.10(a);
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower 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 subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower 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), (ru), (u) and w), (y), (z), (ii) and/or (jj) of this Section 6.01 (in any case, including any refinancing Indebtedness incurred in respect thereof, “Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of 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 (x1) 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 (y2) 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 (ia), (m), w) and/or (n), (r) and (uz) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)Customary Bridge Loans), such Indebtedness (other than revolving indebtedness) has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial 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 remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,;
(iii) [reserved],the terms of any Replacement Debt with an original principal amount in excess of the Threshold Amount (excluding, to the extent applicable, pricing (including any “MFN” provision), fees, premiums, rate floors, optional prepayment, funding discounts, maturity, amortization schedule, redemption terms or subordination terms and security), are not, taken as a whole (as determined by the Borrower in good faith), more favorable to the lenders providing such Indebtedness than those applicable to the Indebtedness being refinanced, refunded or replaced (other than (A) any covenant or any other provision applicable only to periods after the applicable maturity date of the debt then being refinanced as of such date, (B) any covenant or provision which constitutes a then-current market term for the applicable type of Indebtedness (as determined by the Borrower in good faith), or (C) any covenant or other provision which is conformed (or added) to the Loan Documents for the benefit of the Lenders or, as applicable, the Administrative Agent, pursuant to an amendment to this Agreement effectuated in reliance on Section 9.02(d)(ii), it being understood and agreed that if any Refinancing Indebtedness that constitutes a revolving facility includes a financial covenant, the requirement set forth in this clause (iii) shall be satisfied if such financial covenant is added to this Agreement for the benefit of the then-existing Revolving Facility but not any then-existing Term Facility);
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (j), (m), (r) and n)(ii)(C), (u), (w) (solely as it relates to the Fixed Incremental Amount), (y), (z) (solely as it relates to the Fixed Incremental Amount), (ii) and/or (jj) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts amount outstanding in reliance on the relevant clause,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 incurred as constituting Replacement Term LoansDebt, (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, to the extent and (2) either (x) if the Liens securing such Indebtedness were originally contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Initial2024 Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Initial2024 Term Loans on terms not materially less favorable (as reasonably determined by the BorrowerBorrower 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 inin any relevant Intercreditor Agreement or (y) the purchase, defeasance, redemption, repurchase, repayment, refinancing or otherwise subject to, an Acceptable Intercreditor Agreementother 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 6.016.01 (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 NotesDebt, (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 secured by Liens on pari passu or junior with respect to the Collateral shall be subject to any applicable Acceptable an Intercreditor AgreementsAgreement, (B) such if the Indebtedness being refinanced, refunded or replaced is secured, it is not secured by any assets other than asset that does not constitute Collateral; it being understood that the Collateral and 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 incurred or guaranteed Guaranteed by any Person Restricted Subsidiary of the Borrower other than one or more Loan Parties, Parties (Cit 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, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a Loan
Appears in 1 contract
Sources: Credit Agreement (First Watch Restaurant Group, Inc.)
Indebtedness. The Borrower shall notExcept as disclosed on Section 4.2 of the Company Disclosure Schedule, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or otherwise become or remain liable with respect to any Indebtedness, except:
(a) the Obligations (including any Additional Term Loans);
(b) no 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 any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note);
(c) [reserved];
(d) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof Company or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or Company Subsidiaries contains any such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary restriction upon (i) pursuant the prepayment of any of such Indebtedness, (ii) the incurrence of Indebtedness by the Company or any of the Company Subsidiaries, or (iii) the ability of the Company or any of the Company Subsidiaries to tendersgrant any Encumbrance on its properties or assets. As used in this Agreement, statutory obligations, bids, leases, governmental contracts, “Indebtedness” means (A) all indebtedness for borrowed money or for the deferred purchase price of property or services (other than expenses and current trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations liabilities incurred in the ordinary course of business consistent with past practice and (ii) payable 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 servicesaccordance with customary practices), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(h) guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided other indebtedness 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 is evidenced by a utilization of the relevant basket note, bond, debenture, credit agreement or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01similar instrument, (C) if the Indebtedness being refinancedall obligations under leases that should be classified as capital leases in accordance with GAAP, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including all obligations in respect of letters acceptances issued or created, (E) all indebtedness referred to in clauses (A) through (D) secured by an Encumbrance on any property of creditsuch Person and (F) all guarantee obligations for indebtedness of others referred to in clauses (A) through (E). For purposes of this Agreement, bank guaranties“Encumbrance” means any mortgage, surety bondspledge, performance bonds security interest, attachment, right of first refusal, option, proxy, voting trust, encumbrance, lien or similar instruments with respect to such Indebtedness) incurred by the Borrower and/or charge of any Restricted Subsidiary in respect of workers compensation claims, unemployment insurance kind (including premiums related theretoany conditional sale or other title retention agreement or lease in the nature thereof), other types of social securityrestrictions (whether on voting, pension obligationssale, vacation paytransfer, health, disability disposition 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;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrowerotherwise), any Restricted Subsidiary that is subordination arrangement in favor of another Person, any filing or agreement to file a Loanfinancing statement as debtor under the Uniform Commercial Code or any similar statute.
Appears in 1 contract
Sources: Merger Agreement (EastBridge Investment Group Corp)
Indebtedness. The No Borrower shall not, nor shall it will permit any of its Restricted Subsidiaries toMaterial Subsidiary (other than a Borrower, directly a Guarantor, AUSA or indirectly, AARe) to create, incur, assume or suffer to exist any Debt, other than the following:
(i) [Reserved];
(ii) Debt outstanding on the date hereof and listed on Schedule 7.01;
(iii) Guarantees by (A) any Material Subsidiary in respect of Debt of a Borrower or a Guarantor or (B) any Material Subsidiary of Debt of any Subsidiary, in each case if such Debt is otherwise become not prohibited hereunder;
(iv) Consolidated Operating Debt;
(v) Debt of any Material Subsidiary (including Capital Leases, mortgage financings or remain liable purchase money obligations) incurred to finance or reimburse the purchase price or cost of the acquisition, development, construction, alteration, purchase, lease, repair, addition or improvement of property (real or personal), plant, equipment or other fixed or capital assets (whether through the direct purchase of assets or the purchase of Equity Interests of any Person owning such assets), within the limitations set forth in Section 7.02(ix);
(vi) Debt of any Person that becomes a Material Subsidiary of a Borrower after the date hereof; provided that (A) such Debt exists at the time such Person becomes a Material Subsidiary and is not created in contemplation of or in connection with respect such Person becoming a Material Subsidiary and (B) after giving effect to such Person becoming a Material Subsidiary, the Borrowers shall be in compliance with the covenant in Section 7.09 on a pro forma basis;
(vii) obligations of any Subsidiary to maintain the net worth, capital or solvency of any of its Subsidiaries in accordance with the requirements of or under any agreement with their respective Applicable Insurance Regulatory Authority;
(viii) Debt owing to any Indebtedness, except:Borrower or any other Subsidiary of a Borrower;
(a) the Obligations obligations and liabilities (including any Additional Term Loans);
(bwhether directly or as a guarantor) Indebtedness of the Borrower to any Restricted Subsidiary and/or of any Restricted Material Subsidiary to the Borrower and/or any other Restricted Subsidiary; provided, that any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note);
(c) [reserved];
(d) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price under or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereundertreasury, any acquisition permitted hereunder depositary, cash management, custodial, overdraft, commercial purchase cards, automated clearinghouse or consummated prior to the Closing Date and not in contemplation thereof transfer of funds services or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds arrangements or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations services and arrangements incurred in the ordinary course of business and (iib) 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 Debt arising in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary endorsement of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into for deposit in the ordinary course of business;
(hx) guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any nonNon-Loan Party, the related Investment is permitted under Section 6.06Recourse Debt;
(ixi) Indebtedness Debt comprised of “minute notes” or other similar Debt issued or incurred in connection with any acquisition, reinsurance or other investment transaction so long as such Debt is repaid or otherwise discharged within 5 Business Days of the Borrower and/or any Restricted Subsidiary existingclosing of such acquisition, reinsurance or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.01other investment transaction;
(jxii) [reserved];
(k) Indebtedness Debt of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentiveACRA Group so long as after giving effect to the issuance or incurrence thereof, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness Consolidated Debt to Capitalization Ratio of the Borrower and/or any Restricted Subsidiary consisting of ACRA Group does not exceed 25.0% (calculated (i) the financing of insurance premiums, by ignoring any Debt outstanding under clause (xi) above and (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower after eliminations for intercompany Debt among AHL and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets its Subsidiaries), determined on a pro forma basis as of the last day of the most recently ended Test Periodfiscal period for which financial statements have been delivered pursuant to Section 6.01(i) or Section 6.01(ii) (or, so long if prior to any such delivery, those financial statements referred to in Section 5.05(a)), as the Borrower is in pro forma compliance with the Financial Covenantsapplicable (Debt permitted pursuant to this clause, “ACRA Permitted Debt”);
(nxiii) Indebtedness Debt so long as, after giving effect to the issuance or incurrence thereof, the aggregate principal amount of such Debt, together with (A) any Debt outstanding pursuant to clause (xvi) below in respect of Debt initially incurred under this clause (xiii) and (B) (but without duplication of) the aggregate principal amount of any Person that becomes Debt or other obligations secured by Liens pursuant to Section 7.02(xxxv) (and any refinancings of such Debt or other obligations outstanding secured by Liens initially incurred pursuant to Section 7.02(xxxv)), is not in excess of 10% of Consolidated Adjusted Capitalization of AHL and its Subsidiaries (calculated by ignoring any Debt outstanding under clause (xi) above), determined on a Restricted pro forma basis as of the last day of the most recently ended fiscal period for which financial statements have been delivered pursuant to Section 6.01(i) or Section 6.01(ii) (or, if prior to any such delivery, those financial statements referred to in Section 5.05(a)), as applicable;
(xiv) Debt arising from agreements of a Material Subsidiary providing for indemnification, adjustment of purchase price, earn-outs or Indebtedness similar obligations, in each case, incurred or assumed in connection with an the acquisition or disposition of any business or assets, other similar investment than Guarantees of Debt incurred by any Person acquiring all or any portion of such business, assets or Equity Interests for the purpose of financing such acquisition;
(xv) Debt incurred by any Material Subsidiary in connection with third-party insurance premium financing arrangements in the ordinary course of business; and
(xvi) Debt issued or incurred to refinance, refund, renew or extend any Debt permitted hereunder after under the Closing Dateforegoing clauses (ii), (v) (which shall be subject to the limitations set forth in Section 7.02(ix)), (vi), (xii), (xiii) and (xiv); 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 amount of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower Debt is not in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting excess of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by Debt (A) an amount equal to unpaid plus accrued interest, penalties and fees, premiums (including tender premiums) thereon plus and expenses with respect thereto) being refinanced, refunded, renewed or extended at the time of such refinancing, refunding, renewal or extension except by (x) an amount equal to underwriting discountsdiscounts or other amounts paid, other reasonable and customary fees, commissions commissions, premiums (including tender premiums) and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant such refinancing, refunding refunding, renewal or replacement extension and the related refinancing transaction, (By) 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), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis Designated Unutilized Commitments with respect to the remaining Obligations hereunderrefinancing, refunding, renewal or is unsecured; provided that extension of any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding Debt under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced foregoing clauses (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agentii) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faithvi); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a Loan.
Appears in 1 contract
Indebtedness. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectlyContract, create, incur, assume or otherwise become or remain liable with respect suffer to exist any Indebtedness, exceptexcept for:
(a) Indebtedness under the Obligations (including any Additional Term Loans)Loan Documents;
(b) Indebtedness incurred pursuant to the Second Lien Credit Agreement or any refinancing thereof in accordance with the Intercreditor Agreement; provided that the principal amount of Indebtedness incurred in connection with any such refinancing shall not exceed the principal amount of the Borrower to any Restricted Subsidiary and/or of any Restricted Subsidiary to the Borrower and/or any other Restricted Subsidiary; provided, that any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note)so refinanced;
(c) [reserved]Indebtedness incurred prior to the Closing Date or with respect to which an option exists (including existing Capitalized Leases) as set forth on Schedule 6.03;
(d) intercompany Indebtedness arising from any agreement providing for indemnificationbetween the Borrower and the Guarantors, 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 which Indebtedness shall be pledged to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary Collateral Agent pursuant to any such agreementthe First Lien Pledge Agreement, to the extent required pursuant to the terms thereof;
(e) Indebtedness of the Borrower and/or or any Restricted Subsidiary (i) pursuant Guarantor owed to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return one or more Persons in connection with the financing 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 itemscertain insurance premiums;
(f) Indebtedness owed to any Lender (or any of the Borrower and/or its banking Affiliates) or any Restricted Subsidiary other Person in respect of commercial credit cardsfuel ▇▇▇▇▇▇ and other derivatives contracts, stored value cardsin each case to the extent that such agreement or contract is entered into for bona fide hedging purposes and, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course case of businesssuch other derivatives contracts, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(g) Indebtedness owed to any Lender or any of its banking Affiliates or any other Person in respect of (i) foreign exchange contracts, currency swap agreements, currency future or option contracts and other similar agreements designed to hedge against fluctuations in foreign exchange rates and currency values and (ii) interest rate swap, cap or collar agreements, interest rate future or option contracts and other similar agreements designed to hedge against fluctuations in interest rates, in each case to the extent that such agreement or contract is entered into in the ordinary course of business for bona fide hedging purposes;
(h) guarantees by the Borrower and/or Indebtedness owed to any Restricted Subsidiary of Indebtedness or other obligations of the Borrower Lender or any Restricted Subsidiary with of its banking Affiliates or any other Person in 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 overdrafts and related liabilities arising from treasury, depository and cash management services or in connection with any Loan Party automated clearing house transfers of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06funds;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary and the Guarantors consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (x) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not agreements entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection consistent with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness past practices of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed and the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)))Guarantors;
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a Loan
Appears in 1 contract
Sources: First Lien Revolving Credit and Guaranty Agreement (Delta Air Lines Inc /De/)
Indebtedness. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or otherwise become or remain liable with respect to any Indebtedness, except:
(a) the Secured Obligations (including any Additional Term Loans and any Additional Revolving Loans);
(b) 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 in the case of any Indebtedness of any Restricted Subsidiary that is not a Loan Party owing to any Restricted Subsidiary that is a Loan Party, such Indebtedness shall be permitted as an Investment under Section 6.06; provided, further, that any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be unsecured and expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note);
(c) [reserved];
(d) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stock, and Indebtedness arising from guaranteesguaranties, letters of credit, bank guaranteesguaranties, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
(f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including Banking Services Obligations and incentive, supplier finance or similar programs;
(i) guarantees 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, services, CRE Finance Assets goods or Real Estate Investments services or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(h) guarantees Guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or Borrower, any Restricted Subsidiary and/or any joint venture with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 and described on Schedule 6.01;
(j) [reserved]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 $55,000,000 and 30% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations Capital Leases and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 55,000,000 and 0.7530% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation thereof, (ii) no Event of such acquisition Default under Section 7.01(a), (f) or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted hereing) exists and (iiiii) at the Borrower’s election, either (A) the Borrower is in pro forma compliance with Section 6.14(a) (whether or not then in effect) calculated on a Pro Forma Basis as of the Financial Covenantslast day of the most recently ended Test Period or (B) such Indebtedness is in an aggregate principal amount outstanding not to exceed the greater of $40,000,000 and 21.5% of Consolidated Adjusted EBITDA;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower 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 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 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 (x) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) and/or (and 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 Initial 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 remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved]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) (solely as it relates to Indebtedness incurred by any Restricted Subsidiary that is not a Loan Party), (x)(i), (y) and (uz) (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 LoansLoans 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, to the extent and if the Liens securing such Indebtedness were originally contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those (x) applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or (y) set forth in, or otherwise subject to, an Acceptable in the 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 6.016.01 (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 hereunderhereunder (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 secured by Liens on pari passu with respect to the Collateral shall be subject to the First Lien Intercreditor Agreement and any applicable such Indebtedness that is junior with respect to the Collateral shall be subject to the Intercreditor Agreement or, if the Second Lien Facility is no longer outstanding, to an Acceptable Intercreditor AgreementsAgreement, (B) such if the Indebtedness being refinanced, refunded or replaced is secured, it is not secured by any assets other than the Collateral and Collateral, (C) if the Indebtedness being refinanced, refunded or replaced is Guaranteed, it shall not be incurred or guaranteed Guaranteed by any Person other than one or more Loan Parties, Parties and (CD) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b2.11(b)(vi);
(q) [reserved];
Indebtedness incurred to finance any acquisition permitted hereunder after the Closing Date; provided that (ri) Indebtedness before and after giving effect to such acquisition on a Pro Forma Basis, no Event of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not Default under Section 7.01(a), (f) or (g) exists, (ii) after giving effect to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution such acquisition on a Pro Forma Basis (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from without “netting” the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness cash proceeds of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) applicable 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 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 being incurred or any other Investment permitted hereby;
concurrent incurrence of Indebtedness in connection therewith) (uA) if such Indebtedness of is secured by a Lien on the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount Collateral that is pari passu with the Lien on the Collateral securing the Secured Obligations, the First Lien Leverage Ratio does not to exceed the sum of (i) the greater of $140,000,000 (1) 5.35:1.00 and 3.2% (2) the First Lien Leverage Ratio as of Consolidated 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, the Secured Leverage Ratio does not exceed the greater of (1) 7.35:1.00 and (2) the Secured Leverage Ratio as of the last day of the then-most recently completed Fiscal Quarter or (C) if such Indebtedness is unsecured, at the election of the Borrower, either (x) the Total Assets Leverage Ratio does not exceed the greater of (I) 7.35:1.00 and (II) the Total Leverage Ratio as of the last day of the most recently ended Test Period or (y) the Interest Coverage Ratio is not less than the lesser of (I) 2.00:1.00 and (II) the Interest Coverage Ratio as of the last day of the most recently ended Test Period, plus (iiiii) at the election of the Borrower (and without duplication), Liens securing any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) such Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not subordinated (or secured on a Loan Party under any Asset Financing pari passu basis, in the case of clause (ii)(A)) to the Liens securing the Secured Obligations shall be subject to the Intercreditor Agreement or, if the Second Lien Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borroweris no longer outstanding, any Restricted Subsidiary that is a Loanto an Acceptable
Appears in 1 contract
Sources: First Lien Credit Agreement (Dragoneer Growth Opportunities Corp.)
Indebtedness. The Borrower shall notNo 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, exceptother than:
(a) the Obligations (including any Additional Term Loans)Obligations;
(b) Indebtedness of the Borrower any Credit Party (other than Parent) to any Restricted Subsidiary and/or of any Restricted Subsidiary to the Borrower and/or any other Restricted Subsidiary; provided, that any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note)Credit Party;
(c) [reserved]Indebtedness existing on the Tenth Amendment Effective Date and described in Schedule 8.1;
(d) Indebtedness arising from with respect to (x) Capital Leases and (y) purchase money Indebtedness; provided, in the case of clause (x), that any agreement providing for indemnificationsuch Indebtedness shall be secured only by the asset subject to such Capital Lease, adjustment and, in the case of purchase price or similar obligations clause (including contingent earn-out obligations) incurred y), that any such Indebtedness shall be secured only by the asset acquired in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof or any other purchase incurrence of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing such Indebtedness; provided further that the performance sum of the Borrower or aggregate principal amount of any such Restricted Subsidiary pursuant to Indebtedness under this clause (e) shall not exceed $1,500,000 at any such agreementtime;
(e) Indebtedness in respect of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred Swap Agreement that is entered into in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds to hedge or similar instruments mitigate risks to support which any Credit Party or any of its Subsidiaries is exposed in the foregoing items;
conduct of its business or the management of its liabilities (f) Indebtedness 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 Borrower and/or any Restricted Subsidiary in respect ordinary course 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 servicesbusiness to hedge or mitigate risks), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees 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 Borrower and/or Credit Party providing such guarantee in accordance with the terms hereof;
(g) Indebtedness incurred by any Restricted Subsidiary Credit Party constituting reimbursement obligations with respect to letters of the obligations of suppliers, customers credit and licensees bank guarantees issued in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course including letters of business credit in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goodsworkers’ compensation claims, servicesperformance or surety bonds, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(h) guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness health disability or other obligations of the Borrower employee benefits (whether current or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 former) or property, casualty or liability insurance or self-insurance or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (x) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including reimbursement type obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower and/or any Restricted Subsidiary in respect of workers regarding workers’ compensation claims, unemployment insurance (including premiums related thereto), other types of social security, pension obligations, vacation payperformance or surety bonds, 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 claimsinsurance;
(bbh) 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 $1,000,000 at any time in connection with any liquor license held by such landlord;
(m) Indebtedness of any Restricted Credit Party or any Subsidiary that is thereof not a Loan Party under otherwise permitted pursuant to this Section 8.1 in an aggregate principal amount not to exceed $5,000,000 at any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a Loantime outstanding; and
Appears in 1 contract
Indebtedness. The Borrower shall notNo 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 (including any Additional Term Loans)Obligations;
(b) unsecured intercompany Indebtedness permitted pursuant to Section 6.7(c); provided that (i) all such Indebtedness shall be evidenced by the Master Intercompany Note, and, if owed to a Credit Party, shall be subject to a First Priority Lien pursuant to the Pledge and Security Agreement and (ii) all such Indebtedness owed by a Credit Party shall be subordinated in right of payment to the payment in full of the Borrower to any Restricted Subsidiary and/or of any Restricted Subsidiary Obligations pursuant to the Borrower and/or any other Restricted Subsidiary; provided, that any Indebtedness terms of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Master Intercompany Note);
(c) [reserved]Indebtedness incurred by Borrower or any of its Subsidiaries arising from agreements providing for indemnification obligations in connection with permitted dispositions of any business, assets or Subsidiary of Borrower or any of its Subsidiaries permitted under this Agreement, or from surety bonds or performance bonds securing the performance of Borrower or any such Subsidiary pursuant to such agreements incurred in the ordinary course of its business;
(d) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior which may be deemed to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary exist pursuant to any such agreement;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tendersworker’s compensation claims, statutory obligationshealth, bidsdisability or other employee benefits, leasesguaranties, governmental contracts, trade contractsperformance, surety, staystatutory, customs, appeal, performance and/or return of money bonds appeal or other similar obligations incurred in the ordinary course of business and business;
(iie) Indebtedness in respect of letters netting services, overdraft protections and otherwise in connection with deposit accounts in the ordinary course of credit, bank guaranties, surety bonds, performance bonds or similar instruments business in an aggregate amount not to support exceed Five Hundred Thousand Dollars ($500,000) at any of the foregoing itemstime outstanding;
(f) Indebtedness existing on the Closing Date and described on Schedule 6.1 and extensions, refinancing or replacements thereof; provided that (i) such extension, refinancing or replacement does not increase the principal amount of the Borrower and/or such Indebtedness (except in an amount equal to any Restricted Subsidiary reasonable prepayment premiums, fees, expenses or any other similar amounts that are customarily payable 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 servicessuch Indebtedness), employee credit card programs(ii) such extension, cash pooling services refinancing or replacement does not increase the interest rate of such Indebtedness, (iii) extensions, refinancing or replacement is unsecured, (iv) no Credit Party or any Subsidiary that is not originally obligated with respect to repayment of the corresponding Indebtedness is obligated with respect to such extension, refinancing or replacement, (v) such extension, refinancing or replacement does not result in a shortening of the average weighted maturity of the corresponding Indebtedness, and (vi) the terms of such extension, refinancing or replacement other than reasonable and customary fees are not less favorable, when taken as a whole, to the obligor thereunder than the original terms of the corresponding Indebtedness; provided, further, notwithstanding the foregoing, (x) no extension, refinancing or replacement of such Indebtedness shall be permitted if such extension, refinancing or replacement could reasonably be expected to be adverse to the interests of Administrative Agent or any arrangements Lender without prior written consent of Administrative Agent or services similar any Lender and (y) with respect to the Atlas Side Letter, any extension, refinancing or replacement thereof shall be in accordance with Section 6.18(e);
(g) Indebtedness of Borrower or any of the foregoing and/or otherwise its Subsidiaries in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary automated clearinghouse transfer of the obligations of suppliers, customers and licensees funds in the ordinary course of business;
(h) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (iiexcept in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided that such Indebtedness is promptly extinguished;
(i) Indebtedness consisting of a Permitted Government Loan;
(j) Indebtedness consisting of a Permitted Tax Credit Transaction;
(k) Hedging Transactions entered into in the ordinary course of business for bona fide hedging purposes and not for speculation;
(l) Indebtedness evidenced by letters of credit with an aggregate amount at any time outstanding not to exceed Four Million Dollars ($4,000,000); and
(m) Indebtedness under Capital Leases and purchase money obligations to finance the acquisition, construction or improvement of any fixed or capital assets not to exceed, in the aggregate at any time outstanding, Two Hundred Fifty Thousand Dollars ($250,000);
(n) 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 goodscredit cards, credit card processing services, CRE Finance Assets debit cards, stored value cards, commercial cards (including so-called “purchase cards”, “procurement cards” or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(h) guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non“p-Loan Party, the related Investment is permitted under Section 6.06;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existingcards”), or pursuant cash management services not to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each caseexceed, in the ordinary course of business and/or aggregate at any time outstanding, Five Hundred Thousand Dollars (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date500,000); provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;and
(o) other unsecured Indebtedness consisting not to exceed, in the aggregate at any time outstanding, One Million Dollars ($1,000,000). Notwithstanding the foregoing or anything to the contrary herein, no Indebtedness of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing shall at any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and time contain 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 (x) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities financial covenant or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a Loanmaintenance covenant.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Eos Energy Enterprises, Inc.)
Indebtedness. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or otherwise become or remain liable with respect to any Indebtedness, except:
(a) the Obligations (including any Additional Protective Advance Term Loans);
(b) Indebtedness of the Borrower to any Restricted Subsidiary and/or of any Restricted Subsidiary to the Borrower and/or any other Restricted SubsidiarySubsidiary (x) reasonably necessary to consummate or comply with any CRE Loan or CRE Financing, (y) in connection with any Permitted Tax Structuring; or (z) otherwise in the ordinary course of business; provided, that any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note);
(c) [reserved]customary funding obligations, commitments and guarantees of funding obligations and commitments or other credit support in connection with any Permitted CRE Asset and/or related CRE Financing;
(d) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
(f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of assets, goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(h) guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 2,000,000 individually or $5,000,000 in the aggregate, described on Schedule 6.016.01(i);
(j) [reserved];
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) so long as no Event of Default has occurred and is continuing at the time such Indebtedness of the Borrower and/or any Restricted Subsidiary is incurred, Indebtedness to finance capital expenditures with respect to Capitalized Lease Obligations CRE Properties and purchase money Indebtedness in an at such time the aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of Term Loans is less than the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial CovenantsPrincipal Threshold;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants[reserved];
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), and (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (x) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the lesser of (x) the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or and (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) 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
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreementa market intercreditor agreement reasonably acceptable to the Administrative Agent, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the extent such Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option is all or a portion of the BorrowerObligations, (x) not such Refinancing Indebtedness, if secured, may only be materially more restrictive secured on a junior basis to the Borrower Obligations and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect subject to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents an intercreditor agreement that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory acceptable to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”)[reserved];
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed $17,500,000; provided that, at such times as the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as aggregate outstanding principal amount of the last day of Term Loans is less than the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any Principal Threshold such amount reallocated shall increase to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)))$27,500,000;
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt[reserved];
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset CRE Financing, including the increase of Indebtedness under any CRE Financing Facility or the refinancing of any CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a Loan Party or any Restricted Subsidiary that is not a Loan Party, in each case, with respect to the foregoing), in each case, (i) to the extent that such Indebtedness and obligations are not secured by the assets of any Loan Party (other than Capital Stock held by such Loan Party that constitutes Capital Stock issued by any Person that is not a Loan Party and is an obligor or provides credit support with respect to such Indebtedness) and (ii) so long as the Borrower is in pro forma compliance with the Financial Covenants; provided that, no Indebtedness may be incurred in connection with any CRE Loan or CRE Property that is not an Existing CRE Asset, unless at the time of such incurrence the aggregate outstanding principal amount of the Term Loans is less than the Principal Threshold;
(cc) [reserved];
(dd) [reserved];
(ee) unfunded pension fund and other employee benefit plan obligations and liabilities incurred by the Borrower and/or any Restricted Subsidiary in the ordinary course of business to the extent that the unfunded amounts would not otherwise cause an Event of Default under Section 7.01(i);
(ff) security deposits, diligence deposits, purchase price deposits, reserves, advance payments and similar monetary items (in each case, to the extent constituting Indebtedness of the Borrower or any Restricted Subsidiary), received in the ordinary course of business (as determined in good faith by the Borrower) from current or prospective borrowers under any CRE Loan, tenants or other occupants, purchasers for the acquisition, refinancing or occupancy of, or Investment in, CRE Loans and CRE Properties;
(gg) [reserved]; and
(hh) without duplication of any other Indebtedness, all premiums (if any), interest (including post-petition interest), accretion or amortization of original issue discount, fees, expenses and charges with respect to Indebtedness of the Borrower and/or any Restricted Subsidiary hereunder. Notwithstanding anything herein to the contrary, to the extent that [***] has not been joined as a Subsidiary Guarantor hereunder, [***] shall not be permitted to incur Indebtedness for borrowed money or in connection with CRE Financings.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Claros Mortgage Trust, Inc.)
Indebtedness. The Borrower Loan Parties shall not, nor and shall it not permit any of its Restricted their respective Subsidiaries to, directly or indirectly, create, incur, assume assume, suffer to exist or otherwise become or remain liable with obligated in respect to of any Indebtedness, except:
(ai) Indebtedness under the Obligations (including any Additional Term Loans)Loan Documents and the Revolver Credit Agreement;
(bii) Secured Indebtedness of the Borrower and its Subsidiaries in an aggregate principal amount not to exceed 45.0% of Gross Asset Value at any time outstanding;
(iii) Indebtedness of Borrower to any Restricted Subsidiary and/or of its Subsidiaries and of any Restricted such Subsidiary to the Borrower and/or any other Restricted Subsidiary; provided, that (A) such Indebtedness shall be subject to the limitations on Investments set forth in Section 10.5 and (B) any such Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a non-Loan Party must shall be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable satisfactory to the Administrative Agent (including pursuant to an Intercompany Note)Agent;
(civ) [reserved];
(d) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunderGuarantees by the Borrower, any acquisition permitted hereunder Subsidiary Guarantor or consummated prior to any Wholly-Owned Subsidiary of Indebtedness of the Closing Date and not in contemplation thereof Borrower, any Subsidiary Guarantor or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
(f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Wholly-Owned Subsidiary of the obligations of suppliersBorrower; provided, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(h) guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangementsthat, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (x) any additional the Indebtedness referenced in so Guaranteed is permitted by 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) Section 10.3, and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of Guarantees permitted under this clause (ii)), such Indebtedness has (Aiv) subject shall be subordinated to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in Obligations on the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of same terms as the Indebtedness being refinanced, refunded or replaced and (B) subject so Guaranteed is subordinated to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,Obligations;
(v) except in the case Indebtedness of Refinancing Borrower or any of its Subsidiaries constituting purchase money Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loansincluding Capital Lease Obligations); provided, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu incurred prior to or junior in right within 90 days after the acquisition of payment the assets financed thereby and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such the aggregate principal amount of Indebtedness is not secured permitted by any assets other than the Collateral and this clause (v) shall not be incurred or guaranteed by exceed $5,000,000 at any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b)outstanding;
(q) [reserved];
(rvi) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount owed to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 payPerson providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance insurance, pursuant to reimbursement or self-insurance or other Indebtedness with respect indemnification obligations to reimbursement-type obligations regarding workers compensation claimssuch Person, in each case incurred in the ordinary course of business;
(bbvii) Indebtedness of Borrower or any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing of its Subsidiaries in respect of performance bonds, bid bonds, appeal bonds, surety bonds and similar obligations, in each case provided in the ordinary course of business;
(and any guarantees and co-borrower viii) obligations of Borrower or any of its Subsidiaries under Derivatives Contracts permitted under Section 10.13;
(ix) Unsecured Indebtedness of the BorrowerBorrower (including, without limitation, the Unsecured Indebtedness under each of the Material Credit Facilities described in the definition of Material Credit Facility) consisting of investment grade or high-yield senior unsecured notes issued in a public offering or private placement or other unsecured term loan facility (but excluding any Restricted Subsidiary other revolving credit facility) (any such issuance or the entering into of any note purchase agreement or similar agreement pursuant to which the Borrower has agreed to make such issuance, a “Senior Unsecured Debt Issuance”), provided that (i) any such Unsecured Indebtedness shall be at market rates and subject to market terms, (ii) both before and immediately after giving effect to any Senior Unsecured Debt Issuance, no Default or Event of Default exists, and (iii) immediately prior to such Senior Unsecured Debt Issuance, the Administrative Agent shall have received a pro forma Compliance Certificate from the Borrower as of the date of, and after giving effect to, such Senior Unsecured Debt Issuance evidencing compliance with the financial covenants set forth in Section 10.1 (in each case using consolidated Indebtedness of NSA REIT and its Subsidiaries as of the date of, and after giving effect to, such Senior Unsecured Debt Issuance (assuming the maximum amount was issued thereunder) and the repayment of any Indebtedness in connection therewith, and Gross Asset Value as at the end of the most recent Reference Period); and
(x) (i) subject to compliance with Section 8.12 (including any concurrent provision of the Guaranty required to be delivered to the Administrative Agent pursuant to Section 8.12), unsecured Parent Guarantees by NSA REIT of Indebtedness otherwise permitted under this Section 10.3 so long as, both before and immediately after giving effect to any such Parent Guaranty, no Default or Event of Default exists and the Borrower is a Loanin compliance with the financial covenants set forth in Section 10.1 (in each case, as applicable, using consolidated Indebtedness of NSA REIT and its Subsidiaries as of the date of, and after giving effect to, such Parent Guaranty, and Gross Asset Value as at the end of the most recent Reference Period) and (ii) the Existing Non- Recourse Guaranty so long as the loan obligations relating thereto do not exceed $2,212,500.
Appears in 1 contract
Sources: Credit Agreement (National Storage Affiliates Trust)
Indebtedness. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectlyIncur, create, incur, assume or otherwise become or remain liable with respect permit to exist any Indebtedness, howsoever evidenced, except:
(a) the Obligations Indebtedness owing to (including guaranties in favor of) the Agent for the benefit of the Lenders and any Additional Term Loans)other Secured Party in connection with this Agreement, any Note or any other Loan Document;
(b) the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(c) Indebtedness arising from Hedging Agreements entered into in the ordinary course of the Borrower to any Restricted Subsidiary and/or of any Restricted Subsidiary to business;
(d) unsecured intercompany Indebtedness for loans and advances made by and among the Borrower and/or any other Restricted Subsidiary; providedits Subsidiaries, provided that any Indebtedness of any Loan Party owed with respect to any Restricted such intercompany Indebtedness by a Credit Party to a Subsidiary that is not a Loan Party must Credit Party, such Indebtedness shall be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably evidenced by a promissory note or similar written instrument acceptable to the Administrative Agent (including pursuant which provides that such Indebtedness is subordinated to an Intercompany Note);
(c) [reserved];
(d) Indebtedness arising from any obligations, liabilities and undertakings of the holder or owner thereof under the Loan Documents in the form of a subordination agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred reasonably satisfactory in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior form and substance to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreementAgent;
(e) Indebtedness Contingent Obligations of any Credit Party or any of its Subsidiaries with respect to the Borrower and/or obligations of any Restricted other Credit Party or any of its Subsidiaries; provided, that Contingent Obligations of any Credit Party with respect to obligations of any Subsidiary that is not a Credit Party shall be permitted only in support of (i) pursuant to tendersobligations in connection with the purchase (but not the financing of such purchase) or sale of any container, statutory obligationsship, bidschassis and/or related intermodal transportation assets, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in connection with the lease of container, ship, chassis and/or related intermodal transportation assets pursuant to which a Subsidiary is the lessor, (iii) to the extent attributable to any support in respect of letters the performance of creditnon-payment obligations of a Subsidiary, bank guarantiesincluding undertakings by a Credit Party not to permit such Subsidiary to take actions prohibited by agreements to which such Subsidiary is a party (including, surety bondswithout limitation, performance bonds any guarantee for fraud, misrepresentation, misapplication of cash, waste, environmental claims and liabilities, prohibited transfers, violations of single purpose entity covenants, and other circumstances customarily excluded by institutional lenders from exculpation provisions and/or included in separate guaranty or similar instruments indemnification agreements), or (iv) such Contingent Obligations in the aggregate that do not exceed $20,000,000 at any time outstanding (excluding any amounts attributable to support any of the foregoing itemsContingent Obligations permitted by (i)-(iii) above);
(f) Indebtedness of existing on 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 date hereof and interstate depository network services), employee credit card programs, cash pooling services listed on Schedule 9.4 hereof and any arrangements refinancing or services similar to renewal of such Indebtedness; provided, that any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance such refinancing or similar programs;
renewal does not (i) guarantees increase the aggregate amount of such Indebtedness, except (x) by the Borrower and/or amount of any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets premium or Real Estate Investments fee paid or progress payments payable in connection with such assetsextension, goods renewal or replacement, (y) by the amount of any additional Indebtedness permitted pursuant to Section 9.4(h) and/or (z) in connection with any refinancing or renewal of any of the chassis indebtedness identified on Schedule 9.4(f) (and services the parties agree that the proceeds of such refinancing or renewal may be used in any manner that is not otherwise prohibited by this Agreement or the other Loan Documents), or (ii) add to the collateral, if any, securing such Indebtedness except for the addition of Liens against any assets acquired after the date hereof and financed with the additional Indebtedness contemplated by clause (iiiy);
(g) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities Repurchase obligations entered into in the ordinary course of business;
(h) guarantees by the Borrower and/or any Restricted Subsidiary Indebtedness of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary of its Subsidiaries incurred to finance the acquisition, construction or improvement of any fixed or capital assets and any other container, ship, chassis and/or related intermodal transportation assets, in each case in a principal amount not exceeding 100% of the cost to so acquire, construct or improve such assets, and extensions, renewals and replacements of any such Indebtedness and any refinancing or renewal of such Indebtedness; provided, that any such refinancing or renewal does not (i) increase the aggregate amount of such Indebtedness, except (x) by the amount of any premium or fee paid or payable in connection with respect to such extension, renewal or replacement and/or (y) by the amount of any additional Indebtedness otherwise permitted under this paragraph (h) or (ii) add to be incurred pursuant to this Section 6.01 or other obligations not prohibited the collateral, if any, securing such Indebtedness except for the addition of Liens against any assets acquired after the date hereof and financed with the additional Indebtedness contemplated 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 6.06clause (y);
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory assumed in connection with customer financing arrangements in the ordinary course acquisition of business;
(m) Indebtedness of any assets, and/or secured by a Lien on any such assets prior to the Borrower and/or any Restricted Subsidiary acquisition thereof or existing with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Datedate hereof; provided that (i) such Indebtedness (A) existed exists at the time such Person became becomes a Restricted Subsidiary or the such assets subject to such Indebtedness were are acquired and (B) was is not created in contemplation of or incurred in anticipation of such acquisition or investment or connection with such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) or such asset acquisition, and (ii) the Borrower is in pro forma compliance with the Financial Covenantsno Default shall exist after giving effect to such transaction;
(oj) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the its Subsidiaries as an account party in respect of trade letters of credit;
(k) Indebtedness in respect of netting services, overdraft protection and otherwise in connection with customary deposit accounts maintained by Borrower or any current or former director, officer, employee, member of management, manager or consultant its Subsidiaries as part of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a)its ordinary cash management program;
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (x) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(ql) [reserved];
(rm) additional unsecured Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of Parent, the Borrower and from the issuance and sale by the Borrower its Subsidiaries of its Qualified Capital Stock, in each case, (i) other than up to but not exceeding $20,000,000 at any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a Loanone time outstanding.
Appears in 1 contract
Sources: Credit Agreement (Seacastle Inc.)
Indebtedness. The Borrower shall notCreate, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly, createissue, incur, assume assume, become liable in respect of or otherwise become or remain liable with respect suffer to exist any Indebtedness, except:
(a) the Obligations (including Indebtedness of any Additional Term Loans)Loan Party pursuant to any Loan Document;
(b) 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 any Indebtedness of (i) any Loan Party owed to any Restricted other Loan Party and (ii) any Subsidiary that (which is not a Loan Party must be expressly subordinated Guarantor) to any other Subsidiary or the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note)Borrower;
(c) [reserved];
(d) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations Guarantee Obligations incurred in the ordinary course of business by the Borrower and its Subsidiaries of (A) obligations of any Wholly Owned Subsidiary Guarantor, and (B) obligations of any other Subsidiary or Person (other than a Subsidiary) in which the Borrower has an equity interest, not in excess of $5,000,000 in the aggregate, and (ii) except as may be limited by Section 7.2(b), Guarantee Obligations of Indebtedness of any Subsidiary permitted hereunder;
(d) Indebtedness outstanding on the date hereof and listed on Schedule 7.2(d) and any refinancings, refundings, renewals or extensions thereof (which do not shorten the maturity thereof or increase the principal amount thereof);
(e) purchase money Indebtedness (including, without limitation, Capital Lease Obligations) secured by Liens permitted by Section 7.3(g) in respect of letters of creditan aggregate principal amount not to exceed $5,000,000 at any one time outstanding and any refinancings, bank guarantiesrefundings, surety bonds, performance bonds renewals or similar instruments to support any of extensions thereof (which do not shorten the foregoing itemsmaturity thereof or increase the principal amount thereof);
(f) Surety Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) other Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties banker’s acceptances or similar instruments supporting trade payablesarrangements, warehouse receipts or similar facilities entered into provided that the aggregate amount of any such Indebtedness outstanding at any time shall not exceed $5,000,000; provided, that any such letter of credit shall only be permitted pursuant to this clause (f) if such letter of credit is of a type that cannot be issued pursuant to the terms of this Agreement;
(g) so long as no Event of Default has occurred and is continuing at the time of incurrence, Permitted Subordinated Indebtedness (including Guarantee Obligations in respect thereof permitted by clause (e) of the ordinary course definition of businessPermitted Subordinated Indebtedness);
(h) guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness obligations (contingent or other obligations otherwise) of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 of its Subsidiaries existing or other obligations not prohibited by this arising under any Specified Swap Agreement; , provided that such obligations SF1 1952992 are (or were) entered into by such Person in the case accordance with Section 7.11 and not for purposes of any Guarantee speculation; and
(i) Guarantees by any a Loan Party or any of its Subsidiaries of the obligations of any non-Loan Party, the related Investment is permitted Subsidiary under Section 6.06;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar accreditation agreements entered into in the ordinary course of businessbusiness with a registry accredited by the Internet Corporation for Assigned Names and Numbers (ICANN);
(lj) Indebtedness of a Person (other than the Borrower and/or any Restricted or a Subsidiary) existing at the time such Person is merged with or into a Borrower or a Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; Subsidiary, provided that (i) such Indebtedness (A) existed at the time was not, in any case, incurred by such other Person became a Restricted Subsidiary in connection with, or the assets subject to in contemplation of, such Indebtedness were acquired and (B) was not created merger or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and acquisition, (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower such merger or any Restricted Subsidiary to any stockholder of the Borrower or any current or former directoracquisition constitutes a Permitted Acquisition, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (ziii) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (x) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with any such Person who becomes a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) 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 LoansSubsidiary, (A) such Subsidiary is the only obligor in respect of such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement and (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, B) to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i)to be secured hereunder, only the assets of such Subsidiary secure such Indebtedness; and
(vik) in the case Other Indebtedness of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) an aggregate principal amount, for all such Indebtedness taken together, not to exceed $5,000,000 at any one time outstanding; not more than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms $3,000,000 of which are applicable only after the then-existing Latest Maturity Date shall be with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a LoanParties.
Appears in 1 contract
Sources: Credit Agreement (Demand Media Inc.)
Indebtedness. The Borrower Schedule 2.1(f) attached hereto sets forth as of the date hereof all outstanding secured and unsecured Indebtedness of the Company, or for which the Company has commitments to incur. For the purposes of this Agreement, “Indebtedness” shall notmean, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or otherwise become or remain liable with respect to any IndebtednessPerson, except:
(ai) the Obligations all obligations for borrowed money, (including ii) all obligations evidenced by bonds, debentures, notes, or other similar instruments and all reimbursement or other obligations in respect of bankers acceptances, currency swap agreements, interest rate hedging agreements (including, without limitation, interest rate and commodity hedging agreements), or other similar financial products, (iii) all capital lease obligations, (iv) all obligations or liabilities secured by a lien or encumbrance on any Additional Term Loans);
(b) 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 any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations asset of such Loan Party on terms that are reasonably acceptable to Person, irrespective of whether such obligation or liability is assumed, (v) all obligations for the Administrative Agent (including pursuant to an Intercompany Note);
(c) [reserved];
(d) Indebtedness arising from any agreement providing for indemnification, adjustment of deferred purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof or any other purchase of assets (other than trade debt and other account payables), (vi) all synthetic leases, (vii) all obligations with respect to redeemable stock and redemption or Capital Stockrepurchase obligations under any capital stock or other equity securities issued by such Person, (viii) all reimbursement obligations and Indebtedness arising from guaranteesother liabilities of such Person with respect to surety bonds (whether bid, performance or otherwise), letters of credit, bank guaranteesbanker’s acceptances, surety bonds, performance bonds drafts or similar documents or instruments securing the performance of the Borrower or any issued for such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
(f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of businessPerson’s account, (iiix) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(h) guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case indebtedness of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment partnership or joint venture in which such Person is permitted under Section 6.06;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, a general partner or pursuant to commitments existing, on the Closing Date and, a joint venturer to the extent in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became is liable therefor as a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation result of such acquisition or investment or Person’s ownership interest in such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (x) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replacedentity, except to the extent otherwise permitted pursuant to Section 6.01, (C) if that the Indebtedness being refinanced, refunded terms of such indebtedness expressly provide that such Person is not liable therefor or replaced was expressly contractually subordinated to the Obligations in right such Person has no liability therefor as a matter of paymentlaw, (x) such Indebtedness is contractually subordinated to trade debt and other account payables which remain unpaid more than sixty (60) days past the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreementdue date thereof, and (Dxi) if such Replacement Notes are incurred any obligation guaranteeing or intended to refinance Indebtedness outstanding under the Loan Documentsguarantee (whether directly or indirectly guaranteed, thenendorsed, except as otherwise set forth above in this Section 6.01(p)co-made, the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option discounted or sold with recourse) any of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent foregoing obligations of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a LoanPerson.
Appears in 1 contract
Sources: Note and Warrant Purchase Agreement (American Standard Energy Corp.)
Indebtedness. The Borrower Borrowers shall not, nor shall it they permit any of its their Restricted Subsidiaries to, directly or indirectly, create, incur, assume or otherwise become or remain liable with respect to any Indebtedness, except:
(a) the Secured Obligations (including any Additional Term Loans and any Additional Revolving Loans);
(b) Indebtedness of the Borrower Borrowers to Holdings and/or any Restricted Subsidiary and/or of any Restricted Subsidiary to Holdings and/or the Borrower and/or Borrowers 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 Investment by Section 6.06; provided, further, that any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note)Agent;
(c) [reserved]any Indebtedness of Restricted Subsidiaries that are not Loan Parties owing to a Loan Party and incurred on or about the Closing Date in connection with the refinancing of the Existing Term Loan Credit Agreement;
(d) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stock, and Indebtedness arising from guaranteesguaranties, letters of credit, bank guaranteesguaranties, surety bonds, performance bonds or similar instruments securing the performance of the Borrower Borrowers or any such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of the Borrower Borrowers and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance performance, completion and/or return of money bonds or other similar obligations incurred in the ordinary course of business business, in connection with the enforcement of rights or claims of the Borrowers or the Subsidiaries, or in connection with judgments that have not resulted in an Event of Default under Section 7.01(h); 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 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 of the foregoing and/or otherwise in connection with Cash cash management and Deposit Accounts, including Banking Services Obligations and dealer incentive, supplier finance or similar programs;
(g) (i) guarantees guaranties by the Borrower 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 Borrower Borrowers and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets goods or Real Estate Investments services or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(hi) guarantees Guarantees by the Borrower Borrowers and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or 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 the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.066.06 and/or (ii) Guarantees resulting from endorsement of negotiable instruments in the ordinary course of business;
(i) Indebtedness of the Borrower Borrowers and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 and described on Schedule 6.01;
(ji) [reserved]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 $175,000,000 and 20% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period and/or (ii) Indebtedness of any Person that becomes a Restricted Subsidiary after the Closing Date; provided that (A) such Indebtedness exists at the time such Persons becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Restricted Subsidiary, (B) neither the Lead Borrower nor any of its respective Restricted Subsidiaries (other than such Person) shall have any liability or other obligation with respect to such Indebtedness and (C) immediately after such Person becomes a Restricted Subsidiary, no Default or Event of Default shall have occurred and be continuing;
(k) Indebtedness of the Borrower Borrowers 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 Borrowers and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower Borrowers and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and (including Capital Leases, mortgage financings or purchase money Indebtedness obligations), incurred for the purpose of financing or reimbursing all or any part of the purchase price or cost of the acquisition, development, construction, purchase, lease, repair, replacement, installation, addition or improvement of property (real or personal), plant, equipment or other fixed or capital assets that are used or useful by such Person, whether through the direct purchase of assets or the purchase of equity interests of any Person owning such assets (in each case, incurred within 365 days of such acquisition, development, construction, purchase, lease, repair, addition or improvement) in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 300,000,000 and 0.7530% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person incurred by Foreign Subsidiaries that becomes a are Restricted Subsidiary or Indebtedness assumed Subsidiaries in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness aggregate principal amount not exceeding $600,000,000 minus (A) existed at the time such Person became a amount of Indebtedness incurred by Restricted Subsidiary or the assets subject to such Indebtedness were acquired and Subsidiaries that are not Loan Parties in reliance on Section 6.01(q), minus (B) was the amount of Indebtedness incurred by Restricted Subsidiaries that are not created or incurred Loan Parties in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted hereinreliance on Section 6.01(w) and minus (iiC) the Borrower is amount of Indebtedness incurred by Non-U.S. Borrowers in pro forma compliance with the Financial Covenantsreliance on Section 6.01(z);
(o) Indebtedness consisting of promissory notes issued by the Borrower Borrowers or any Restricted Subsidiary to any stockholder of the Borrower any Parent Company or any current or former director, officer, employee, member of management, manager manager, advisor or consultant of any Parent Company, the Borrower Borrowers or any Subsidiary subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of any Parent Company, the Borrower Borrowers or any subsidiary or any of their respective Affiliates permitted by Section 6.04(a);
(p) the Borrowers and their Restricted Subsidiaries may become and remain liable for any Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (c), (i) (excluding the 2020 Notes set forth on Schedule 6.01), (j), (m), (n), (q), (r), (t), (u), (w), (y) and (z) of this Section 6.01 (in any case, including any refinancing Indebtedness incurred in respect thereof, “Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
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 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 the related refinancing transactionreplacement, (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 (x1) 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 (y2) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.026.02 and constitutes a utilization of the relevant basket or exception),
, (ii) other than in the case of Refinancing Indebtedness with respect to clauses clause (i), (m), (nt) or (u), (rA) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to on or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced (with customary exceptions for bridge financings) and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without with customary exceptions for bridge financings), (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, taken as a whole (as reasonably determined by the Lead Borrower), not materially less favorable to the Borrowers and their Restricted Subsidiaries (excluding 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); it being agreed that the applicable Borrower shall have the right to unilaterally provide the existing Lenders with additional rights and benefits (such rights and benefits “Additional Rights”) and the “not materially less favorable” requirement of this clause (iii) and compliance therewith shall be determined after giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
Additional Rights, (iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (j), (m), (rt), (u), (w) (solely as it relates to clause (1) of the proviso thereto) and (uy) 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(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, 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), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, 6.01 and (C) if the Indebtedness being refinanced, refunded or replaced was expressly originally contractually subordinated to the Obligations in right of paymentpayment (or the Liens securing such Indebtedness were originally contractually subordinated to the Liens on the Collateral securing the Secured Obligations), (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, payment (or (y) if not contractually the Liens securing such Indebtedness are subordinated to the Obligations Liens on the Collateral securing the Secured Obligations) on terms not materially less favorable (as reasonably determined by the Lead 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, (vi) except in right the case of paymentRefinancing Indebtedness with respect to clause (a) of this Section 6.01, as of the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement date of the incurrence of such Indebtedness is permitted under Section 6.04(b) and after giving effect thereto, no Event of Default exists, (other than Section 6.04(b)(i), and
(vivii) in the case of Replacement NotesRefinancing 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 secured by Liens on 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 and in the case of any applicable Acceptable Intercreditor Agreementssuch Indebtedness in the form of secured notes that are pari passu with the remaining Obligations under this Agreement incurred or guaranteed by a Loan Party organized outside of the United States, subject to equalization agreements to be agreed by the Lead Borrower and the Administrative Agent; provided, further, that, in the case of any such Refinancing Indebtedness that is unsecured and incurred or guaranteed by a Loan Party organized outside of the United States, subject to customary market intercreditor agreements to be agreed by the Lead Borrower and the Administrative Agent, (B) such if the Indebtedness being refinanced, refunded or replaced is secured, it is not secured by any assets other than the Collateral and Collateral, (C) if the Indebtedness being refinanced, refunded or replaced is Guaranteed, it shall not be incurred or guaranteed Guaranteed by any Person other than one or more a Loan PartiesParty, (CD) such Refinancing Indebtedness is shall be incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable Agreement to the extent that such Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined is secured by the Borrower in good faith) than (when taken as Collateral on a whole) those contained pari passu basis in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), form of secured notes or (y) be conformed is secured by the Collateral on a junior basis or is unsecured, (or addedE) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such 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 lien basis may participate on a pro rata basis or a less than pro rata basis (xbut not greater than a pro rata basis) in any voluntary prepayments or mandatory prepayment in respect of the Initial Term Loans as set forth in Section 2.11(a)(i) (and (y) in any mandatory prepayments of Additional Term Loans as set forth in Section 2.11(bthen subject to ratable repayment requirements);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each casecase as the Lead Borrower and the relevant lender may agree, (iF) other than any Net Proceeds received from the sale 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 substantially concurrently with the issuance of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries such Refinancing Indebtedness and (iiG) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur such Refinancing Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) shall be incurred by the same Borrower and/or any Restricted Subsidiary in respect of workers compensation claimsthat incurred the Indebtedness being refinanced, unemployment insurance (including premiums related thereto), other types of social security, pension obligations, vacation pay, health, disability refunded 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;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a Loanreplaced; pr
Appears in 1 contract
Indebtedness. The None of Holdings or any Borrower shall notshall, nor shall it they permit any of its Restricted their respective Subsidiaries to, directly or indirectly, indirectly create, incur, assume or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, exceptIndebtedness except for the following:
(a) the Secured Obligations (including any Additional Term Loansother than in respect of Hedging Contracts not permitted pursuant to clause (h) below);; 127 CREDIT AGREEMENT SWIFT & COMPANY
(b) Indebtedness existing on the date of the Borrower to any Restricted Subsidiary and/or of any Restricted Subsidiary to the Borrower and/or any other Restricted Subsidiary; provided, that any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party this Agreement and disclosed on terms that are reasonably acceptable to the Administrative Agent Schedule 8.1 (including pursuant to an Intercompany NoteExisting Indebtedness);
(c) [reserved]Guaranty Obligations incurred by Holdings, any Borrower or any Subsidiary Guarantor in respect of Indebtedness of any Borrower or any Subsidiary Guarantor that is permitted by this Section 8.1 (other than pursuant to clause (j) or (l) below) and for which, if required, appropriate Guaranty Obligations have been provided pursuant to Section 7.11 (Additional Collateral and Guaranties); provided, however, that, in respect of Guaranty Obligations of Indebtedness permitted pursuant to clause (m) below, such Guaranty Obligation shall be permitted only if it is not reflected on the balance sheet and other Financial Statements of the Company or any of its Subsidiaries other than as a contingent obligation referred to in a footnote to such Financial Statements;
(d) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligationsi) Capital Lease Obligations incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to by the Closing Date and not in contemplation thereof Company or any other purchase of assets or Capital Stockits Subsidiaries to finance the acquisition of fixed assets; provided, and Indebtedness arising from guaranteeshowever, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing that the performance Dollar Equivalent of the Borrower aggregate outstanding principal amount of all such Capital Lease Obligations shall not exceed $25,000,000 at any time and (ii) purchase money Indebtedness incurred by the Company or any of its Subsidiaries to finance the acquisition of fixed assets; provided, however, that the Dollar Equivalent of the aggregate outstanding principal amount of all such Restricted Subsidiary pursuant to purchase money Indebtedness shall not exceed $25,000,000 at any such agreementtime;
(e) Renewals, extensions, refinancings and refundings of Indebtedness of permitted by clause (d) above or this clause (e); provided, however, that any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the Borrower and/or any Restricted Subsidiary (i) pursuant principal amount of, and is on terms no less favorable to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds the Company 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 its Subsidiaries with respect to weighted average maturity and final maturity than, the foregoing itemsIndebtedness being renewed, extended, refinanced or refunded;
(f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
arising from intercompany loans (i) guarantees by from the Borrower and/or Company to any Restricted Domestic Subsidiary of Guarantor or from any Domestic Subsidiary Guarantor to the obligations of suppliers, customers and licensees in the ordinary course of businessCompany or any other Domestic Subsidiary Guarantor, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or from any Restricted Subsidiary Australian Loan Party to pay the deferred purchase price of goodsany other Australian Loan Party, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) from the Company to Australian Holdings, to the extent made under the Australian Intercompany Credit Agreement or (iv) from any Borrower or any Subsidiary Guarantor to any Subsidiary of any Borrower that is not a Subsidiary Guarantor; provided, however, that, in the case of this clause (iv), the Investment in such intercompany loan to such Subsidiary is permitted under Section 8.3 (Investments);
(g) Indebtedness in respect of letters of creditarising under any performance, bankers’ acceptances, bank guaranties surety or similar instruments supporting trade payables, warehouse receipts or similar facilities appeal bond entered into in the ordinary course of businessbusiness or, in respect of Australian Subsidiaries, reimbursement or similar obligations regarding workers' compensation claims;
(h) guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is Obligations under Hedging Contracts permitted under Section 6.068.18 (No Speculative Transactions);
(i) Indebtedness in respect of the Borrower and/or any Restricted Subsidiary existing, or pursuant Senior Notes in an aggregate principal amount not to commitments existing, on exceed $268,000,000 and Indebtedness in respect of the Closing Date and, Subordinated Notes in an aggregate principal amount not to the extent in excess of exceed $6,000,000 described on Schedule 6.01;150,000,000; 128 CREDIT AGREEMENT SWIFT & COMPANY
(j) [reserved]Indebtedness of any Loan Party (i) constituting Indebtedness of such Loan Party solely under clause (j) of the definition of Indebtedness and solely because of a Lien on the Stock or Stock Equivalents of a Permitted Joint Venture owned by such Loan Party to secure Indebtedness of such Permitted Joint Venture and its Subsidiaries and (ii) whose holder's sole recourse to any Loan Party is through such Lien on such Stock;
(k) at any time after all Revolving Credit Commitments shall have been terminated (other than pursuant to Section 9.2 (Remedies)) and all Revolving Credit Outstandings shall have been repaid in full, Indebtedness of any Borrower in respect of unsecured revolving lines of credit in an aggregate outstanding principal amount and aggregate commitment in Dollars not exceeding the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into aggregate Revolving Credit Commitments as in effect immediately prior to the termination thereof and otherwise on terms and conditions not significantly different from those offered to borrowers in the ordinary course of businessmarketplace for similar facilities (the "Replacement Credit Lines"); provided, however, that such Replacement Credit Lines shall not contain any mandatory prepayment provisions until the Term Loan Maturity Date (or until after the Term Loans shall have irrevocably been paid in full);
(l) Non-Recourse Indebtedness of the a Subsidiary of any Borrower and/or assumed by such Subsidiary in connection with any Restricted Permitted Acquisition (or, if such Subsidiary consisting is acquired as part of such Permitted Acquisition, existing prior thereto); provided, however, that (i) such Indebtedness exists at the financing time of insurance premiumssuch Permitted Acquisition at least in the amounts assumed in connection therewith and is not drawn down, created or increased in contemplation of or in connection with such Permitted Acquisition and (ii) take-or-pay obligations contained such Indebtedness is not assumed (in supply arrangements, whole or in each case, in the ordinary course of business and/or (iiipart and whether directly or pursuant to Guaranty Obligations) obligations by any Person that was a Loan Party or a Subsidiary thereof before giving effect to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of businesssuch Permitted Acquisition;
(m) Indebtedness (other than Guaranty Obligations) arising from Contractual Obligations incurred by the seller in connection with an Asset Sale permitted pursuant to Section 8.4 (Sale of Assets) (other than the Australian Asset Sale) and providing for indemnification, adjustments of purchase price or similar obligations; provided, however, that such Indebtedness shall be permitted solely if it is not reflected on the balance sheet and other Financial Statements of the Borrower and/or Company or any Restricted Subsidiary with respect of its Subsidiaries other than as a contingent obligation referred to Capitalized Lease Obligations and purchase money in a footnote to such Financial Statements; and
(i) Additional Unsecured Indebtedness in an aggregate outstanding principal amount the Dollar Equivalent of which shall not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) 200,000,000 and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) unsecured Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness not otherwise permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof8.1; provided that:
(i) provided, however, that the Dollar Equivalent of the principal amount of all 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), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by exceed $25,000,000 at any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a Loantime.
Appears in 1 contract
Sources: Credit Agreement (S&c Resale Co)
Indebtedness. The Borrower shall notNo 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 (including any Additional Term Loans)Obligations;
(b) Indebtedness of the Borrower any Guarantor Subsidiary to Company or to any Restricted Subsidiary and/or other Guarantor Subsidiary, or of Company to any Restricted Subsidiary to the Borrower and/or any other Restricted Guarantor Subsidiary; provided, that any (i) all such Indebtedness of any Loan Party owed shall be subject to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated First Priority Lien pursuant to the Pledge and Security Agreement, (ii) all such Indebtedness shall be unsecured and, pursuant to Section 7.7 hereof, subordinated in right of payment to the payment in full of the Obligations and (iii) to the extent any of such Loan Party on terms that are reasonably acceptable Indebtedness is evidenced by a promissory note or other similar evidence of Indebtedness, then such note shall be delivered to the Administrative Collateral Agent (including pursuant to an Intercompany Note)the extent required under the Pledge and Security Agreement;
(c) [reservedReserved];
(d) [Reserved];
(e) Indebtedness incurred by Holdings or any of its Subsidiaries arising from any agreement agreements providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof from guaranties or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, bonds or performance bonds or similar instruments securing the performance of the Borrower Company or any such Restricted Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any such agreementbusiness, assets or Subsidiary of Holdings or any of its Subsidiaries;
(ef) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) which may be deemed to exist pursuant to tendersany guaranties, statutory obligations, bids, leases, governmental contracts, trade contractsperformance, surety, staystatutory, customs, appeal, performance and/or return of money bonds appeal or other similar obligations (including, for the sake of clarity, obligations of the type described in Section 6.2(d)) incurred in the ordinary course of business and or (ii) consisting of reimbursement obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support credit issued in connection with any of the foregoing itemssuch obligations;
(fg) 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 protections 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 accounts and Specified Cash management and Deposit Accounts, including incentive, supplier finance or similar programsManagement Arrangements;
(ih) guarantees by guaranties in the Borrower and/or any Restricted Subsidiary ordinary course of business of the obligations of suppliers, customers customers, franchisees and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods Holdings 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 businessits Subsidiaries;
(hi) guarantees guaranties by the Borrower and/or any Restricted Company of Indebtedness of a Guarantor Subsidiary or guaranties by a Subsidiary of Company of Indebtedness of Company or other obligations of the Borrower or any Restricted a Guarantor Subsidiary with respect respect, in each case, to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.016.1;
(j) [reserved]Indebtedness described in Schedule 6.1 or otherwise permitted under this Section 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) incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(k) Indebtedness of the Borrower and/or with respect to Capital Leases not involving real property in an aggregate amount not to exceed at any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of businesstime $15,000,000;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed at any time $10,000,000 (including any Indebtedness acquired in connection with a Permitted Acquisition); provided, any such Indebtedness (i) shall be secured only to the greater asset acquired in connection with the incurrence of $33,000,000 such Indebtedness, and 0.75(ii) shall constitute not less than 75% of Consolidated Total Assets the aggregate consideration paid with respect to such asset;
(m) Permitted Seller Notes (i) issued by Holdings as consideration in Permitted Acquisitions; provided, that the aggregate principal amount of such Permitted Seller Notes issued by Holdings shall not exceed $10,500,000; and (ii) issued by Company as consideration in Permitted Acquisitions; provided, that the last day aggregate amount of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenantssuch Permitted Seller Notes issued by Company shall not exceed $4,500,000;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed Earn-Out Obligations incurred by Holdings constituting consideration payable in connection with an Permitted Acquisitions; provided, that the maximum aggregate exposure, as reasonably estimated by management under all such Earn-Out Obligations shall not exceed $20,000,000 at any time outstanding;
(o) a Subsidiary acquired pursuant to a Permitted Acquisition may become or remain liable with respect to Indebtedness of such Subsidiary existing at the time of the acquisition of such Subsidiary by Company or any other similar investment permitted hereunder after the Closing Dateof its Subsidiaries and, a Subsidiary may become liable with respect to Indebtedness secured by assets acquired pursuant to a Permitted Acquisition; 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 connection with, or in anticipation of of, such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) Permitted Acquisition, and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) aggregate principal amount of all such Indebtedness consisting of promissory notes issued by the Borrower or at any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a)time outstanding does not exceed $10,000,000;
(p) Indebtedness refinancing, refunding of Company or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) its Subsidiaries to a Person to 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) extent incurred in connection with the relevant refinancing, refunding a Permitted Acquisition of a portion 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 all of the relevant basket or exception pursuant to which such additional amount is permitted) Capital Stock of a Permitted Partially-Owned Subsidiary and (y) if such additional Indebtedness is secured, the Lien securing any guaranty of such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than by Holdings, in the case of Refinancing Indebtedness with respect an aggregate principal amount not to clauses (i)exceed at any time outstanding $5,000,000, (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), payments on such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness shall only be permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b6.5(g);
(q) [reservedReserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received Holdings constituting Investments by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied Company permitted under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”)Section 6.7 hereof;
(s) Indebtedness constituting Permitted Unsecured Indebtedness; provided that, at the time of incurrence of such Indebtedness, (i) the pro forma Leverage Ratio, after giving effect to the incurrence of such Permitted Unsecured Indebtedness (as if such Permitted Unsecured Indebtedness had been incurred on the last day of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction prior Fiscal Quarter), shall not entered into for speculative purposesexceed 2.75:1.0 and (ii) the Company’s Liquidity Amount shall be greater than or equal to $50,000,000;
(t) other unsecured Indebtedness of the Borrower and/or Holdings and its Subsidiaries (other than with respect to Permitted Seller Notes, Take Out Securities or Permitted Unsecured Indebtedness), in an aggregate amount not to exceed at any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted herebytime $20,000,000;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary Holdings or Company comprised of Take Out Securities; and
(v) Indebtedness with respect to Capital Leases involving real property in an aggregate outstanding principal amount not to exceed at any time $70,000,000; provided, however, that to the sum extent that the amount of Indebtedness incurred under Section 6.1 (ik) remains less than $15,000,000, Company may increase the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to Indebtedness allowed under this Section 6.01(u)(ii6.1(v) from Section 6.04(a)(x) (provided that by the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
difference between (x) [reserved];
$15,000,000 and (y) [reserved];
the actual amount of indebtedness incurred under Section 6.1 (zk); provided, further, however, that such an increase in the Indebtedness allowed by this Section 6.l(v) Incremental Equivalent Debt;
(aaabove $70,000,000 shall reduce the $15,000,000 set forth in Section 6.1(k) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not on a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a Loandollar for dollar basis.
Appears in 1 contract
Indebtedness. The Borrower No Credit Party 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) (i) the Obligations Senior Secured Debt and (including ii) any Additional Term Loans)Replacement Debt that is not secured on a pari passu basis with the Loans and Obligations; provided, that, in either case, only the Borrower shall directly incur Replacement Debt, and the other Credit Parties may guarantee such Replacement Debt;
(b) purchase money Indebtedness of the Borrower to any Restricted Subsidiary and/or of any Restricted Subsidiary or Capital Lease Obligations to the Borrower and/or any other Restricted Subsidiaryextent incurred in the ordinary course of business to finance the acquisition or licensing of intellectual property or items of equipment; provided, that any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to (i) if such obligations are secured, they are secured only by Liens upon the Obligations equipment or intellectual property being financed and (ii) the aggregate principal amount and the capitalized portion of such Loan Party on terms that are reasonably acceptable to obligations do not at any time exceed $30,000,000 in the Administrative Agent (including pursuant to an Intercompany Note)aggregate;
(c) [reserved];
(d) Indebtedness incurred by any Credit Party arising from any agreement agreements providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred Indebtedness consisting of the deferred purchase price of property acquired in connection with any Disposition permitted hereundera Permitted Acquisition), any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof from guarantees or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, bonds or performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary Credit Party pursuant to such agreements, in connection with Permitted Acquisitions or permitted dispositions of any such agreementbusiness, assets or Subsidiary of any Credit Party;
(d) Indebtedness that is unsecured not to exceed $250,000,000 in the aggregate at any time outstanding;
(e) trade or other similar Indebtedness incurred in the ordinary course of the Borrower and/or any Restricted Subsidiary business, which is (i) pursuant not more than ninety (90) days past due, or (ii) being contested in good faith and by appropriate proceedings;
(f) contingent liabilities incurred in the ordinary course of business, including the acquisition or sale of goods, services, supplies or merchandise in the normal course of business, the endorsement of negotiable instruments received in the normal course of business and indemnities provided under any of the Transaction Documents;
(g) to tendersthe extent constituting Indebtedness, statutory 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 or other cash management services in the ordinary course of business;
(h) to the extent constituting Indebtedness, obligations in respect of performance bonds, bid bonds, appeal bonds, surety bonds, indemnification obligations, bidsobligations to pay insurance premiums, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other take-or-pay obligations contained in supply agreements and similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
(f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programsbusiness;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters any bankers’ acceptance, letter of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts receipt or similar facilities entered into in the ordinary course of business;
(h) guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;
(ij) Indebtedness in respect of the Borrower and/or any Restricted Subsidiary existingnetting services, or pursuant to commitments existing, on the Closing Date and, to the extent overdraft protections and otherwise in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved]connection with deposit accounts;
(k) Indebtedness of unfunded pension fund and other employee benefit plan obligations and liabilities to the Borrower and/or any Restricted Subsidiary consisting of obligations owing extent they are permitted to remain unfunded under incentive, supply, license or similar agreements entered into in the ordinary course of businessapplicable law;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained premiums in supply arrangements, in each case, in customary amounts consistent with operations and business of the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements Credit Parties in the ordinary course of business;
(m) Subordinated Indebtedness of between or among the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Credit Parties; provided that, all such Indebtedness in shall be evidenced by an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial CovenantsIntercompany Note;
(n) any other Indebtedness of the Borrower, provided, that (i) any such Indebtedness shall be repaid or cancelled in full prior to or concurrent with a Credit Extension on the CCTP Funding Date, and (ii) the proceeds of such Credit Extension are not used to repay any such Indebtedness;
(o) with respect to the Borrower, Indebtedness of a Person that or Indebtedness attaching to assets of a Person that, in either case, becomes a Restricted Subsidiary of Borrower or Indebtedness assumed in connection with an acquisition attaching to assets that are acquired by Borrower or any other similar investment permitted hereunder after the Closing Date; of its Subsidiaries, provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary of Borrower or at the time such assets subject to such Indebtedness were acquired and (B) and, in each case, was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) thereof, and (ii) the Borrower such Indebtedness is not guaranteed in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued any respect by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary Guarantor (or their respective Immediate Family Members) to finance the purchase or redemption other than by any such Person that so becomes a Subsidiary of Capital Stock of the Borrower permitted by Section 6.04(aBorrower);
(p) Indebtedness refinancingto current or former officers, refunding managers, consultants, directors and employees of Cheniere Energy Partners GP, LLC or replacing any Indebtedness permitted under clauses Credit Party (a)or their respective spouses, (i)former spouses, (m)successors, (n)executors, (r)administrators, (uheirs, legatees or distributees) and (z) incurred in lieu of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereofthe payment of cash consideration for the redemption of Equity Interests or securities convertible into Equity Interests of Borrower or Parent of Borrower; provided that:
(i) that payment of such Indebtedness is subordinated to the repayment of the Obligations on terms and conditions acceptable to Administrative Agent; provided that the aggregate 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 $5,000,000 at 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), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the time outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors consideration payable in respect of the Indebtedness being refinancedsuch Equity Interests or securities convertible into Equity Interests may be calculated net of any applicable exercise price, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing taxes or other acquisition amounts payable by the holder or retirement beneficiary thereof in respect of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu Equity Interests or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(bconvertible securities);
(q) [reserved]prior to the CCTP Funding Date and to the extent considered consolidated debt of any Credit Party, the CCTP Existing Debt;
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) prior to the common equity SPLNG Funding Date and to the extent considered consolidated debt of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions fromCredit Party, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”)SPLNG Senior Notes;
(s) Indebtedness in respect of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;Commodity Hedge Agreements, in each case subject to Section 6.16 (Speculative Transactions); and
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing all premiums (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplicationif any), any amount reallocated to this Section 6.01(u)(iiinterest, fees, expenses, charges and additional or contingent interest on obligations described in paragraphs (b), through (s) from Section 6.04(a)(x) (above; provided that after giving effect to the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect incurrence of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by , Borrower shall be in Pro Forma compliance with Section 6.6 (Financial Covenant). For the Borrower and/or any Restricted Subsidiary in respect avoidance of workers compensation claimsdoubt, unemployment insurance (including premiums related thereto), other types of social security, pension obligations, vacation pay, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Unrestricted Subsidiary that is (for which the Credit Parties are not a Loan Party under any Asset Financing Facility guarantors or CRE Financing obligors) shall not be prohibited or limited by this Section 6.1 (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a LoanIndebtedness).
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Cheniere Energy Partners, L.P.)
Indebtedness. The Borrower shall notNo Credit Party will, nor shall will it permit any of its Restricted Subsidiaries to, directly or indirectlycontract, create, incur, assume or otherwise become or remain liable with respect permit to exist any Indebtedness, except:
(a) Indebtedness arising under this Credit Agreement and the Obligations (including any Additional Term Loans)other Credit Documents;
(b) 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 any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note)Subordinated Debt;
(c) [reserved]Indebtedness existing as of the Closing Date (other than the Subordinated Debt) as referenced in Section 6.10 (and renewals, refinancings or extensions thereof on terms and conditions no more favorable, in the aggregate, to such Person than such existing Indebtedness and in a principal amount not in excess of that outstanding as of the date of such renewal, refinancing or extension);
(d) Indebtedness arising from any agreement providing for indemnification, adjustment in respect 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 current accounts payable and not in contemplation thereof or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations accrued expenses incurred in the ordinary course of business including, to the extent not current, accounts payable and accrued expenses that are subject to bona fide dispute;
(iie) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments Indebtedness owing by one Credit Party to support any of the foregoing itemsanother Credit Party;
(f) purchase money Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(iCapital Leases) guarantees incurred by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(h) guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect of its Subsidiaries to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in finance the case purchase of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Datefixed assets; provided that (i) the total of all such Indebtedness for all such Persons taken together shall not exceed an aggregate principal amount of $7,000,000 at any one time outstanding (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to including any such Indebtedness were acquired and referred to in subsection (Bc) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and above); (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does when incurred shall not exceed the principal amount purchase price of the Indebtedness being refinanced, refunded or replaced, except by (Aasset(s) an amount equal to unpaid accrued interest, penalties financed; 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), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing no such Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication refinanced for a principal amount in excess of any amounts the principal balance outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens thereon at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), ; and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(rg) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower arising from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a LoanCredit Parties evidenced by the interest rate protection agreements referred to in Section 7.14.
Appears in 1 contract
Indebtedness. The Each Borrower and Guarantor shall not, nor and shall it not permit any of its Restricted Subsidiaries to, incur, create, assume, become or be liable in any manner with respect to, or permit to exist, any Indebtedness, or guarantee, assume, endorse, or otherwise become responsible for (directly or indirectly), createthe Indebtedness, incurperformance, assume obligations or otherwise become or remain liable with respect to dividends of any Indebtednessother Person, except:
(a) the Obligations (including any Additional Term Loans)Obligations;
(b) purchase money Indebtedness (including Capital Leases) arising after the date hereof to the extent secured by purchase money security interests in Equipment (including Capital Leases) and purchase money mortgages on Real Property not to exceed $2,500,000 in the aggregate at any time outstanding so long as such security interests and mortgages do not apply to any property of such Borrower, Guarantor or Subsidiary other than the Equipment or Real Property so acquired, and the Indebtedness secured thereby does not exceed the cost of the Borrower to any Restricted Subsidiary and/or of any Restricted Subsidiary to Equipment or Real Property so acquired, as the Borrower and/or any other Restricted Subsidiary; provided, that any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note)case may be;
(c) [reserved]guarantees by any Borrower or Guarantor of the Obligations of the other Borrowers or Guarantors in favor of Working Capital Agent for the benefit of Lenders;
(d) the Indebtedness of any Borrower or Guarantor to any other Borrower or Guarantor arising pursuant to loans permitted under Section 9.10(d) or (e) hereof, provided, that, as to any such Indebtedness at any time owing by a Borrower to a Guarantor, (i) the Indebtedness arising from any pursuant to such loans shall be subject to, and subordinate in right of payment to, the right of Agents and Lenders to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions acceptable to Agents, (ii) such Borrower or such Guarantor shall join the Intercompany Subordination Agreement pursuant to a joinder agreement providing for indemnificationin form and substance reasonably satisfactory to the Working Capital Agent, adjustment of purchase price (iii) such Borrower shall not, directly or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunderindirectly make, or be required to make, any acquisition permitted hereunder or consummated payments in respect of such Indebtedness prior to the Closing Date end of the then current term of this Agreement, except that Parent and not Merchandising may make regularly scheduled payments of interest to Resources on a semi-annual basis at the end of the second and fourth Fiscal Quarters of Parent in contemplation thereof respect of intercompany loans made by Resources to Parent or Merchandising, as the case may be, so long as Resources immediately applies all of the proceeds of such interest payments to make an intercompany loan in cash to Parent or Merchandising in accordance with the terms of Section 9.10(d) hereof; and (iv) in the case of any other purchase of assets Indebtedness owing to a Borrower or Capital StockGuarantor, and the Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreementloan shall not be evidenced by a promissory note or other instrument, unless the single original of such note or other instrument is promptly delivered to Working Capital Agent upon its request to hold as part of the Collateral, with such endorsement and/or assignment by the payee of such note or other instrument as Working Capital Agent may require;
(e) Indebtedness of the any Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
(f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities Guarantor entered into in the ordinary course of businessbusiness pursuant to a Hedge Agreement; provided, that, (i) such arrangements are with a Bank Product Provider, (ii) such arrangements are not for speculative purposes, and (iii) such Indebtedness shall be unsecured, except to the extent such Indebtedness constitutes part of the Obligations arising under or pursuant to Hedge Agreements with any Bank Product Provider that are secured under the terms hereof;
(hf) unsecured guarantees by the Parent or a Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;
(i) Indebtedness of the a Borrower and/or any Restricted Subsidiary existing, or arising pursuant to commitments existing, on the Closing Date and, to the extent a lease from a third party in excess a bona fide arm’s length transaction of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into real property for use as a retail store location in the ordinary course of business;
(l) Indebtedness the business of the Borrower and/or any Restricted Subsidiary consisting of such Borrower; provided, that, (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower Person issuing such guarantee is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after to incur directly the Closing Date; provided obligation that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) is being guaranteed and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (x) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day date on which such guarantee is issued no Event of the most recently ended Test Period, plus (ii) at the election of the Borrower (Default exists or has occurred and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)))is continuing;
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a Loan
Appears in 1 contract
Indebtedness. The Borrower Borrowers shall not, nor shall it they permit any of its Restricted their Subsidiaries or any other Loan Parties to, directly or indirectly, create, incur, assume or otherwise become or remain liable with respect to any Indebtedness, except:
(a) the Secured Obligations (including including, without limitation, any Additional Term LoansLoans and any Additional Revolving Facility);
(b) Indebtedness of the Borrower Parent to any Restricted Subsidiary and/or and of any Restricted Subsidiary to the Borrower and/or any other Restricted Subsidiary; provided, provided that in the case of any Indebtedness of any Loan Party owed to any Restricted a Subsidiary that is not a Loan Party owing to a Loan Party, such Indebtedness shall (x) be permitted as an Investment by Section 7.06 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 having a principal amount in excess of €1,000,000 on an individual basis of NY\6497185.2 any Loan Party to any Subsidiary that is not a Loan Party and which is not an Exempt Intra-Group Obligation must be expressly subordinated to the Obligations of such Loan Party pursuant to the terms of the Intercreditor Agreement or otherwise on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note)Agent;
(c) [reserved];
(d) Indebtedness arising from any agreement agreements 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 acquisitions permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof or any other purchase purchases of assets or Capital Stock, and Indebtedness arising from guaranteesguaranties, letters of credit, bank guaranteesguaranties, surety bonds, performance bonds or similar instruments securing the performance of the any Borrower or any such Restricted Subsidiary pursuant to any such agreementagreements;
(ed) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) which may be deemed to exist pursuant to any performance and completion guaranties or customs, stay, performance, bid, surety, statutory, appeal, performance and return of money bonds, tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds contracts or other similar obligations incurred in the ordinary course of business and (ii) or in respect of any letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
(fe) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, cards and treasury management services, including Cash Management Obligations, and other netting services, overdraft protections, check drawing servicesautomated clearing-house arrangements, automated payment services (including depository, overdraftemployee credit card programs, controlled disbursement, ACH transactions, return items and items, interstate depository network services)service, employee credit card programsSociety for Worldwide Interbank Financial Telecommunication transfers, cash pooling services and any operational foreign exchange management, and, in each case, similar arrangements or services similar to any of the foregoing and/or and otherwise in connection with Cash cash management, including cash management arrangements among Parent and its subsidiaries, and Deposit Accounts, including incentive, supplier finance or similar programs;
(if) guarantees by the Borrower and/or any Restricted Subsidiary (x) Indebtedness in respect of Guarantees of the obligations of suppliers, customers and licensees in the ordinary course of business, (iiy) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or Borrowers or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets goods or Real Estate Investments services or progress payments in connection with such assets, goods and services and (iiiz) Indebtedness in respect of letters any letter of credit, bankers’ acceptancesacceptance, bank guaranties guaranty or similar instruments instrument supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(hg) guarantees by the Borrower and/or any Restricted Subsidiary Guarantees of Indebtedness or other obligations of the Borrower Borrowers or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 7.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee Guarantees by any a Loan Party of the obligations of any a non-Loan Party, Party the related Investment is permitted under Section 6.067.06;
(ih) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to and described on Schedule 7.01 and intercompany Indebtedness outstanding on the extent Closing Date; provided that all such Indebtedness having a principal amount in excess of €1,000,000 of any Loan Party to any Subsidiary that is not a Loan Party must be subject to the Intercreditor Agreement or another intercreditor agreement reasonably satisfactory to the Administrative Agent;
(i) Indebtedness of Subsidiaries that are not Loan Parties; provided that the aggregate principal amount at any time outstanding of such Indebtedness shall not exceed $6,000,000 described on Schedule 6.0189,200,000;
(j) [reserved];
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under any customer or supplier incentive, supply, license or similar agreements entered into in the ordinary course of business;
(lk) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, premiums and/or (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;
(ml) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations Capital Leases and purchase money Indebtedness incurred prior to or within 270 days of the acquisition or lease or completion of construction, repair or replacement of, or improvement to or installation of assets in an aggregate outstanding principal amount at any time outstanding not to NY\6497185.2 exceed the greater of (i) $33,000,000 150,000,000 and 0.75(ii) 10% of Consolidated Total Assets of the Borrowers, as of the last day of the most recently ended Test PeriodPeriod for which financial statements have been delivered pursuant to Section 6.01(b) or (c), so long as the Borrower is in pro forma compliance with the Financial Covenantsapplicable;
(nm) Indebtedness of any a Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder a Permitted Acquisition after the Closing Date; provided that (i) such Indebtedness Indebtedness
(A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition connection or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and contemplation thereof, (ii) at the Borrower is in pro forma compliance with time of the Financial Covenantsexecution of the definitive agreement governing such Permitted Acquisition, no Event of Default exists or would result therefrom, and (iii) the Interest Coverage Ratio would be no less 2.00:1.00 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 6.01(b) or (c), as applicable, prior to the date of the execution of the definitive agreement governing such acquisition;
(on) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder stockholders of the Borrower any Parent Company or any current or former directordirectors, officerofficers, employeeemployees, member members of management, manager managers or consultant consultants of any Parent Company, the Borrower Borrowers or any Subsidiary subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower any Parent Company permitted by Section 6.04(a7.04(a);
(po) the Borrowers and their Subsidiaries may become and remain liable for (i) any Refinancing Notes and (ii) any other Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (ah), (i), (l), (m), (np), (rs), (uw) and (zx) of this Section 6.01 7.01 (in any case, including any refinancing Indebtedness incurred in respect thereof, “Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
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) by an amount equal to unpaid accrued interest, penalties 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 such refinancing or replacement and the related refinancing transactionreplacement, (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 7.01 (provided that (x) any so long as such additional Indebtedness referenced in this clause (C) satisfies meets 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) and, if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.027.02),
, (ii) other than in the case of Refinancing Indebtedness with respect to clauses Indebtedness incurred pursuant to clause (ih), (l) or (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii))Section 7.01, such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to on or later than (and, in the case of revolving Indebtedness, does shall not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and and, other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
replaced, (iii) [reserved],
the terms of such 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)), 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 which are on then current market terms for the applicable type of Indebtedness), (iv) in the case of Refinancing such Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured such Indebtedness may be refinanced with unsecured Indebtednessgo from being secured to being unsecured), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (Bv) 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 6.017.01, Section 7.02 and Section 7.06), (Cvi) if the Indebtedness being refinanced, refunded or replaced was expressly originally contractually subordinated to the Obligations in right of paymentpayment (or the Liens securing such Indebtedness were originally contractually subordinated to the Collateral), (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, payment (or (y) if not contractually the Liens securing such Indebtedness shall be subordinated to the Obligations in right Collateral) on terms not materially less favorable, 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, (vii) as of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement date of incurring such Indebtedness is permitted under Section 6.04(band after giving effect thereto, no Event of Default shall exist or have occurred and be continuing and (viii) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is shall be pari passu or junior in right of payment and secured by the Collateral on a be pari NY\6497185.2 passu or junior basis with respect to security with the remaining Obligations hereunder, hereunder or is shall be unsecured; provided that any such Indebtedness that is secured by Liens on pari passu or junior with respect to the Collateral shall be subject to any applicable Acceptable the Intercreditor AgreementsAgreement or another intercreditor agreement on terms reasonably satisfactory to the Administrative Agent and the Borrower Representative, (B) if such Indebtedness being refinanced, refunded or replaced is secured, it shall not be secured by any assets other than the Collateral and Collateral, (C) if such Indebtedness being refinanced, refunded or replaced is Guaranteed, it shall not be incurred or guaranteed Guaranteed by any Person other than one or more a Loan Parties, Party and (CD) such Indebtedness is incurred under (and pursuant to) documentation other than this AgreementAgreement and in the case of Refinancing Indebtedness with respect to clauses (j), (m), (v) (but only to the extent such Refinancing Indebtedness is incurred by non-Loan Parties) and clause (Dy) if (but only to the extent such Replacement Notes are Refinancing Indebtedness is incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms connection with Sale and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the thenLease-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans Back Transactions permitted pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment clause (A) or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form clause (but not the substanceC)(3) of the applicable agreement effecting proviso set forth in Section 7.08) of this Section 7.01, the incurrence of such amendment or modification is reasonably satisfactory Refinancing Indebtedness shall be without duplication of any amounts outstanding under such clauses;
(p) Indebtedness incurred to finance Permitted Acquisitions after the Administrative Agent) or Closing Date; provided that (z) reflect then current market terms and conditions (taken as a wholei) at the time of incurrence or issuance the execution of the definitive agreement governing such Permitted Acquisitions (as determined by pro forma for the Borrower in good faithconsummation of such Permitted Acquisition); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right , no Event of payment and secured by the Collateral on a pari passu basis Default exists, (ii) except with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate any Indebtedness (x) owed to the seller of any property or assets acquired in a Permitted Acquisition or other Investment permitted by Section 7.06 in an aggregate principal amount at any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and time outstanding for all such Indebtedness not to exceed $71,400,000, or (y) in an aggregate principal amount that does not exceed the Threshold Amount for such Permitted Acquisitions, such Indebtedness shall not mature or require any mandatory prepayments payment of Term Loans principal (other than payments as set forth part of an “applicable high yield discount obligation” (AHYDO) catch-up payments, customary offers to repurchase in connection with any change of control, Disposition 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 Latest Maturity Date as of such date, (iii) any such Indebtedness owing pursuant to clause (ii)(x) above may only be secured pursuant to Section 2.11(b7.02(u) and (iv) either (A) the Interest Coverage Ratio would be greater than 2.00:1.00 calculated on a Pro Forma Basis (without netting the cash proceeds of any such Indebtedness for the purposes of such calculation) as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.01(b) or (c), as applicable, prior to the date of the execution of the definitive agreement governing such acquisition (or would result therefrom) or (B) the Interest Coverage Ratio would be no less than immediately prior to giving effect to such incurrence on a Pro Forma Basis; provided that the aggregate principal amount at any time outstanding of such Indebtedness of any Subsidiaries that are non-Loan Parties incurred under this clause (p) shall not exceed, the greater of $35,700,000 and 3% of Consolidated Total Assets of the Borrowers as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.01(b) or (c), as applicable;
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower Borrowers or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(ts) Indebtedness in an aggregate principal amount at any time outstanding not to exceed the greater of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business $47,600,000 and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.24% of Consolidated Total Assets of the Borrowers, as of the last day of the most recently ended Test PeriodPeriod for which financial statements have been delivered pursuant to Section 6.01(b) or (c), plus as applicable;
(i) to the extent constituting Indebtedness, obligations of Holdings or any Subsidiary incurred pursuant to Permitted Factoring Arrangements in an aggregate principal amount not to exceed (when aggregated with the amount of all Recourse Permitted Securitizations then outstanding) $35,700,000; and (ii) at to the election extent constituting Indebtedness, obligations of Holdings or any Subsidiary which is the Borrower seller or servicer (and without duplication), or any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) obligation of Holdings or any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower and/or any Restricted Subsidiary in respect of workers compensation claimsa seller or servicer) in a Permitted Securitization in respect of any Standard Securitization Undertakings; it being understood that, unemployment insurance notwithstanding the terms of this Agreement, the Intercreditor Agreement and the Collateral Documents, the Administrative Agent shall take all necessary steps (including premiums related thereto)providing instruction to the Security Agent) to enable Loan Parties to release all Liens over (x) Securitization Assets that are the subject of a Permitted NY\6497185.2 Securitization or Recourse Permitted Securitization, other types (y) Factoring Assets that are the subject of social securitya Permitted Factoring Arrangement (whether, pension obligationsfor the avoidance of doubt, vacation pay, health, disability on a recourse or other employee benefits non-recourse basis) and (z) Dedicated Receivables Accounts used in connection with any such Permitted Securitization or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claimsPermitted Factoring Arrangement;
(bbu) additional Indebtedness so long as the Interest Coverage Ratio would not be less than 2.00:1.00 calculated on a Pro Forma Basis (without netting the cash proceeds of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations such Indebtedness for the purposes of such calculation) as of the Borrower, any Restricted Subsidiary that is a Loanlast day of the most recently ended Test Period for which financial statements have been delive
Appears in 1 contract
Sources: Credit Agreement (Orion S.A.)
Indebtedness. The Borrower shall notCreate, nor shall it incur, assume or suffer to exist, or permit any of its Restricted Subsidiaries to, directly or indirectly, to create, incur, assume or otherwise become or remain liable with respect suffer to exist, any Indebtedness, except:
(ai) Indebtedness under the Obligations (including any Additional Term Loans)Loan Documents;
(b) 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 any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note);
(c) [reserved];
(d) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
(f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness unsecured trade payables incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(hiii) guarantees by unsecured Indebtedness owing to the Borrower and/or any Restricted or a Guarantor by a Subsidiary of the Borrower or by a Joint Venture or that is an Investment permitted under Section 5.02(f)(iii) below;
(iv) Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect incurred after the Closing Date in order to Indebtedness otherwise permitted purchase or develop Real Estate Property (other than the 77 Greenwich Property) or to be incurred pursuant finance the construction or improvement of Real Estate Property (other than the 77 Greenwich Property) or to this Section 6.01 purchase furniture, fixtures or other obligations not prohibited by this Agreement; provided that equipment for Real Estate Property (other than the 77 Greenwich Property) which, in the case of such purchase, relates to an Investment which is a Permitted Real Estate Acquisition or to refinance any Guarantee by of the foregoing Indebtedness (any such Indebtedness described in this subparagraph (iv), the “Permitted Additional Property Indebtedness”) so long as: (i) the payment of such Indebtedness is non-recourse to the Borrower or any Loan Party (except for Customary Recourse Exceptions and other than as provided in the following clause (v)), either as a result of the obligations structure of, or a contractual provision applicable to, such Indebtedness, (ii) the principal amount of Indebtedness related to such Real Estate Property and related assets does not increase the Loan to Value Ratio above 75% (the calculation of which Loan to Value Ratio will not take into account transaction costs incurred in connection with such Indebtedness), (iii) no Loan Party shall have guaranteed the principal amount of such Indebtedness (other than with respect to Non-Recourse Debt Guarantees) (other than to the extent of any non-security therefor permitted by the following clause (iv)), (iv) any Liens securing such Indebtedness shall not apply to any other property or assets of the Borrower or any other Loan PartyParty and (v) the term of such Indebtedness (x) is on commercially reasonable terms or (y) are reasonably satisfactory to the Required Lenders and the Required Lenders have provided their prior written consent with respect to such Indebtedness (which shall not be unreasonably withheld or delayed) (provided that the Borrower shall provide prior written notice to the Required Lenders of such proposed incurrence of Indebtedness, together with such other information reasonably requested by the Required Lenders, thereafter, the related Investment is permitted under Section 6.06Required Lenders shall have five (5) Business Days from the date of the receipt of such documentation and other information to advise the Borrower whether it agrees to incurrence and terms of such Indebtedness and if the Required Lenders shall fail to respond to the Borrower with a disapproval of such Indebtedness within such five (5) Business Day period, the Required Lenders shall be deemed to have approved the incurrence and terms of such Indebtedness);
(iv) Indebtedness of the Borrower and/or or any Restricted Subsidiary existing, or pursuant to commitments existing, on incurred after the Closing Date andin order to develop the 77 Greenwich Property or to finance the construction or improvement of the 77 Greenwich Property or to purchase furniture, fixtures or other equipment for the 77 Greenwich Property or to refinance the 77 Greenwich Property Loan (it being understood and agreed that the incurrence of such refinancing Indebtedness with respect to the extent 77 Greenwich Property shall be permitted to be incurred separately with respect to the retail portion of such property and with respect to the residential portion of such property) or any refinancing thereof (including any mortgage, construction loans, mezzanine financings and refinancings of the 77 Greenwich Property Loan) (the “Permitted 77 Greenwich Indebtedness”); provided that (i) the principal amount of Indebtedness does not increase the Loan to Value Ratio above 75% (the calculation of which Loan to Value Ratio will not take into account transaction costs incurred in excess connection with such Indebtedness) and (ii) the term of $6,000,000 described such Indebtedness (x) is on Schedule 6.01;commercially reasonable terms or (y) are reasonably satisfactory to the Required Lenders and the Required Lenders have provided their prior written consent with respect to such Indebtedness (which shall not be unreasonably withheld or delayed) (provided that the Borrower shall provide prior written notice to the Required Lenders of such proposed incurrence of Indebtedness, together with such other information reasonably requested by the Required Lenders, thereafter, the Required Lenders shall have five (5) Business Days from the date of the receipt of such documentation and other information to advise the Borrower whether they agree to incurrence and terms of such Indebtedness and if the Required Lenders shall fail to respond to the Borrower within such five (5) Business Day period with a disapproval of such Indebtedness, the Required Lenders shall be deemed to have approved the incurrence and terms of such Indebtedness);
(j) [reserved];
(kvi) Indebtedness arising in connection with the endorsement of the Borrower and/or any Restricted Subsidiary consisting instruments or other payment items for deposit and unsecured Indebtedness incurred in respect of obligations owing under incentivenetting services, supplyoverdraft protection, license or similar agreements entered into and other like services, in each case, incurred in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (x) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a Loan
Appears in 1 contract
Indebtedness. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectlyIncur, create, incur, assume or otherwise become or remain liable with respect permit to any Indebtedness, exceptexist any:
(a) Indebtedness for borrowed money other than: (i) the Obligations; (ii) Permitted Purchase Money Indebtedness; (iii) such Rate Management Obligations and credit card Obligations to Lender or its Affiliates pursuant to such terms and conditions as agreed to by Lender and Borrowers; (including any Additional Term Loansiv) Indebtedness described on Schedule 5.1(a);; (v) such Indebtedness not otherwise authorized by this Section 5.1 that has been specifically approved in writing by Lender; and (vi) Indebtedness of one Loan Party to another Loan Party.
(b) 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 any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not under a Loan Party must be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note)Rate Management Agreement except as approved in writing by Lender;
(c) [reserved]Indebtedness representing reimbursement obligations and other liabilities with respect to surety bonds (whether bid, performance or otherwise), letters of credit, banker's acceptances, drafts or similar documents or instruments;
(d) Indebtedness arising secured by a Lien on or payable out of the proceeds or production from any agreement providing for indemnification, adjustment property of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof or any other purchase it regardless of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any whether such Restricted Subsidiary pursuant to any such agreementliability has been assumed by it;
(e) Indebtedness representing the balance deferred and unpaid of the Borrower and/or purchase price of any Restricted Subsidiary property or services except (i) pursuant to tendersPermitted Purchase Money Indebtedness, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
(f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(h) guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (x) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness balance that is secured by Liens on the Collateral shall be subject constitutes an account payable to any applicable Acceptable Intercreditor Agreementsa trade creditor created, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred incurred, assumed or guaranteed by any Person other than one or more a Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower Party or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation of such Loan Party or other similar arrangements Subsidiary in connection with the Transactionsobtaining goods, any Permitted Acquisition materials or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary services that is not subject to a promissory note or other instrument made by such Loan Party or Subsidiary; or
(f) Indebtedness evidenced by notes, bonds, debentures, installment contracts, capitalized leases, synthetic leases, or similar obligations except to the extent permitted under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a LoanSection 5.1(a).
Appears in 1 contract
Sources: Credit Agreement (Arotech Corp)
Indebtedness. The Each Borrower shall not, nor and shall it not permit any of its Restricted Subsidiaries Subsidiary to, incur, create, assume, become or be liable in any manner with respect to, or permit to exist, any Indebtedness, or guarantee, assume, endorse, or otherwise become responsible for (directly or indirectly), createthe Indebtedness, incurperformance, assume obligations or otherwise become or remain liable with respect to dividends of any Indebtednessother Person, except:
(a) the Obligations (including any Additional Term Loans)Obligations;
(b) purchase money or other types of Indebtedness (including Capitalized Leases) arising after the date hereof to the extent secured by purchase money or other types of security interests in Equipment and the proceeds thereof (including Capitalized Leases) and purchase money or other type of mortgages or liens on Real Property not to exceed $2,500,000 in the aggregate incurred during any fiscal year so long as such security interests, mortgages or liens do not apply to any property of such Borrower or Subsidiary other than the Equipment or Real Property (and the proceeds thereof) acquired after the date of this Agreement, and the Indebtedness secured thereby does not exceed the cost of the Borrower to any Restricted Subsidiary and/or of any Restricted Subsidiary to Equipment or Real Property so acquired, as the Borrower and/or any other Restricted Subsidiarycase may be; provided, that any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note);
(c) [reserved];
(d) Indebtedness arising from any agreement providing for indemnificationthat, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
(f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(h) guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or 9.9(b) other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and than purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount Agent shall have received five (5) Business Days' prior written notice of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal intention of Borrowers 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 incur 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)Indebtedness,
(ii) other than in Agent shall have received true, correct and complete copies of the case of Refinancing Indebtedness with respect to clauses (i)agreements, (m), (n), (r) documents and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for instruments evidencing or otherwise replace related to 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 reductionsduly authorized, if any, prior to) executed and delivered by the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such timeparties thereto,
(iii) [reserved]Agent shall have received true, correct and complete copies of any amendments to the documentation evidencing such Indebtedness which amend, modify, alter or change in any material respect the terms of such Indebtedness,
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m)Borrowers shall not, (r) and (u) of this Section 6.01directly or indirectly, 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 Loansredeem, (A) such Indebtednessretire, if secureddefease, is secured only by Permitted Liens at the time of such refinancing, refunding purchase or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing otherwise acquire such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, aside or otherwise subject to, an Acceptable Intercreditor Agreement, (B) deposit or invest any sums for such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replacedpurpose, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens exercise of a purchase option on the Collateral shall be Equipment subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a Loan,
Appears in 1 contract
Sources: Loan and Security Agreement (Lexington Precision Corp)
Indebtedness. The Borrower shall notNo 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 (including any Additional Term Loans)Obligations;
(b) Indebtedness of the any Subsidiary to Borrower or to any other Subsidiary, or of Borrower to any Restricted Subsidiary and/or of any Restricted Subsidiary to the Borrower and/or any other Restricted Subsidiary; provided, that (i) all such Indebtedness shall be evidenced by the Intercompany Note, and, if owed to a Credit Party, shall be subject to a First Priority Lien pursuant to the Pledge and Security Agreement, (ii) all such Indebtedness shall be unsecured and, if owed by a Credit Party, subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the Intercompany Note, (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 of any Loan Party owed by such Subsidiary to Borrower or to any Restricted Subsidiary that of its Subsidiaries for whose benefit such payment is not a Loan Party must be expressly subordinated to the Obligations of made and (iv) such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to Indebtedness is permitted as an Intercompany NoteInvestment under Section 6.6(d);
(c) [reserved];
(d) Indebtedness incurred by Holdings or any of its Subsidiaries arising from any agreement agreements providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof or any other purchase Indebtedness consisting of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
(f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goodsproperty acquired in a Permitted Acquisition or Investment), services, CRE Finance Assets or Real Estate Investments from guaranties or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptancessurety bonds or performance bonds securing the performance of Borrower or any such Subsidiary pursuant to such agreements, bank guaranties in connection with Investments permitted hereunder or Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of Holdings or any of its Subsidiaries;
(d) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into obligations incurred in the ordinary course of business;
(he) guarantees Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accounts;
(f) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of Borrower and its Subsidiaries;
(g) guaranties by the Borrower and/or any Restricted of Indebtedness of a Guarantor Subsidiary or guaranties by a Guarantor Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted another Guarantor Subsidiary with respect respect, in each case, to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 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 other obligations not prohibited by this Agreement; replacements of such Indebtedness except (i) renewals and extensions expressly provided that for in the case agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any Guarantee by any Loan Party such Indebtedness if the terms and conditions thereof are not 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 obligations of any non-Loan PartyIndebtedness being refinanced or extended; provided, the related Investment is such Indebtedness permitted under Section 6.06the 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 (plus accrued interest and fees and expenses 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 of the Borrower and/or or its Subsidiaries with respect to Capital Leases in an aggregate principal amount not to exceed at any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of time $6,000,000 described on Schedule 6.012,000,000;
(j) [reserved]purchase money Indebtedness (or refinancing thereof) of Borrower or its Subsidiaries in an aggregate principal amount not to exceed at any time $7,500,000; provided, any such Indebtedness shall be secured only by the asset acquired in connection with the incurrence of such Indebtedness (or Indebtedness refinanced with such Indebtedness);
(ki) 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, in an aggregate principal 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 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 (plus accrued interest and fees and expenses in connection with such refinancing) 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;
(l) from and after the Funding Date, Indebtedness of one of more Credit Parties in respect of the Replacement Revolving Credit Facility in an aggregate principal amount not to exceed at any time $75,000,000, including with respect to letters of credit issued thereunder;
(m) other unsecured Indebtedness of Borrower and/or and its Subsidiaries including Indebtedness of Foreign Subsidiaries in an aggregate principal amount not to exceed at any Restricted time $5,000,000;
(n) if the Exchange Offer is consummated, then, after the Funding Date, Indebtedness under the Senior Subordinated Notes in an aggregate principal amount not to exceed the amount set forth on Schedule 6.1(n) (as increased by any increased principal amount of Senior Subordinated Notes that remain outstanding following the Exchange Offer due to Borrower obtaining a Permitted Waiver);
(o) unsecured subordinated Indebtedness of Holdings in an aggregate principal amount not to exceed $25,000,000, which is subordinated pursuant to subordination terms substantially in the form of Exhibit K or otherwise subject to subordination provisions reasonably satisfactory to the Requisite Lenders; provided that (i) all interest on such Indebtedness is paid in kind by adding it to the principal balance thereof, (ii) such Indebtedness shall not mature, and Holdings shall not be required to pay any amount of principal of or interest on or other amount with respect to such Indebtedness, in each cause until at least the sixth anniversary of the Funding Date, (iii) the terms and conditions, taken as a whole, governing such Indebtedness are not materially more restrictive than the terms and conditions set forth in this Agreement, and (iv) such Indebtedness shall not be guaranteed by any Subsidiary of Holdings (and no such Person shall otherwise be liable with respect to such Indebtedness);
(p) Indebtedness consisting of obligations owing under incentive, supply, license or similar agreements entered into the financing of insurance premiums in customary amounts and in the ordinary course of business;
(lq) unsecured Indebtedness of Holdings to Borrower or any Guarantor Subsidiary that would be permitted as a Restricted Junior Payment under Section 6.4;
(r) Indebtedness represented by appeal, bid, performance, surety or similar bonds, workers’ compensation claims and self-insurance obligations, in each case to the extent incurred in the ordinary course of business; and
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay Credit Party under any Interest Rate Agreement required by Section 5.12 or any other Interest Rate Agreement or Currency Agreement; provided that with respect to any such other Interest Rate Agreement or Currency Agreement such obligations contained in supply arrangements, in each case, are entered by such Credit Party in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection for the purpose of mitigating risks associated with customer financing arrangements in the ordinary course of business;
(m) Indebtedness business of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations Credit Parties and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (x) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) . If the Chapter 11 Cases have commenced, from and after the Plan Effective Date, the foregoing exceptions shall not include any Pre-Petition Indebtedness of Domestic Subsidiaries except to the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary extent provided in the ordinary course Plan of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a LoanReorganization.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Keystone Automotive Operations Inc)
Indebtedness. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly, createCreate, incur, assume or otherwise become or remain liable with respect suffer to exist any Indebtedness, except:
(a) Indebtedness of Education Management, Holdings, Company and any of its Subsidiaries under the Obligations Credit Documents (including any Additional Term Loansincluding, without limitation, the payment of PIK Interest);
(b) 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 any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note)intercompany Indebtedness) outstanding on the Closing Date and listed on Schedule 6.3(b) and any Permitted Refinancing thereof;
(c) [reserved]Guarantees by Education Management, Holdings, Company and its Subsidiaries in respect of Indebtedness of Company or any Subsidiary otherwise permitted hereunder; provided that (A) no Guarantee by any Credit Party of any Senior Note or Junior Financing shall be permitted unless such Credit Party shall have also provided a Guarantee of the Obligations substantially on the terms set forth in the Guaranty and (B) if the Indebtedness being Guaranteed is subordinated to the Obligations, such Guarantee shall be subordinated to the Guarantee of the Obligations on terms at least as favorable to the Lenders as those contained in the subordination of such Indebtedness;
(d) Indebtedness arising from of Education Management or 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 Subsidiary owing to the Closing Date and not in contemplation thereof Education Management or any other purchase Subsidiary to the extent constituting an Investment permitted by Section 6.2; provided that (i) all such Indebtedness of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing any Credit Party owed to any Person that is not a Credit Party shall be subject to the performance subordination terms set forth in Section 4.4.3 of the Borrower or Pledge and Security Agreement and (ii) all such Indebtedness of any such Restricted Subsidiary Credit Party owed to another Credit Party (A) shall be evidenced by the Intercompany Note, which shall be subject to a First Priority Lien pursuant to any such agreementthe Pledge and Security Agreement and (B) shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the Intercompany Note;
(e) Indebtedness with respect to Capitalized Leases in an aggregate amount, together with the aggregate amount of the Borrower and/or any Restricted Subsidiary (i) Indebtedness incurred pursuant to tendersSection 6.3(g), statutory obligationsnot to exceed at any time an amount equal to the greater of $160,000,000 and 4% of Total Assets;
(f) Indebtedness in respect of Swap Agreements designed to hedge against interest rates, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds foreign exchange rates or other similar obligations commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(g) purchase money Indebtedness in an aggregate amount, together with the aggregate amount of Indebtedness incurred pursuant to Section 6.3(e), not to exceed at any time an amount equal to the greater of $160,000,000 and 4% of Total Assets; provided, any such Indebtedness (i) shall be secured only by the asset acquired in connection with the incurrence of such Indebtedness, and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any shall constitute not less than 85% of the foregoing itemsaggregate consideration paid with respect to such asset;
(fh) (i) the following 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 assumed in connection with Cash management Permitted Acquisitions (provided that such Indebtedness is not incurred in contemplation of any such Permitted Acquisition): (x) Indebtedness assumed by Holdings, (y) Indebtedness assumed by Company, provided that such Indebtedness is unsecured and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by is subordinated to the Borrower and/or any Restricted Subsidiary Obligations on terms no less favorable to the Lenders than the subordination terms set forth in the Old Senior Subordinated Notes Indenture as of the obligations of suppliers, customers Closing Date and licensees (z) other Indebtedness assumed by Company and its Subsidiaries in the ordinary course of businessan aggregate amount not to exceed $125,000,000 at any one time outstanding, (ii) Indebtedness incurred by Holdings or Company to finance a Permitted Acquisition, provided that such Indebtedness is unsecured and is subordinated to the Obligations on terms no less favorable to the Lenders than the subordination terms set forth in the ordinary course of business in respect of obligations Old Senior Subordinated Notes Indenture as of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services Closing Date and (iii) any Permitted Refinancing of the foregoing, provided that with respect to any unsecured and/or subordinated Indebtedness, the Permitted Refinancing thereof shall be similarly unsecured and/or subordinated; provided that, in each case of the foregoing clauses (i), (ii) and (iii), such Indebtedness and all Indebtedness resulting from any Permitted Refinancing thereof (A) both immediately prior and after giving effect thereto, (1) no Default shall exist or result therefrom and (2) Holdings and its Subsidiaries will be in respect pro forma compliance with the covenants set forth in Section 6.10, (B) matures after, and does not require any scheduled amortization (other than nominal amortization) or other scheduled payments of letters principal prior to, the date that is 91 days after the Tranche C-2 Term Loan Maturity Date (it being understood that such Indebtedness may have mandatory prepayment, repurchase or redemptions provisions satisfying the requirement of creditclause (C) hereof) and (C) has terms and conditions (other than interest rate, bankers’ acceptancesredemption premiums and subordination terms), bank guaranties taken as a whole, that are not materially less favorable to Company as the terms and conditions of the Old Notes as of the Closing Date; provided that a certificate of a Responsible Officer delivered to Administrative Agent at least five Business Days prior to the assumption or similar instruments supporting trade payablesincurrence of such Indebtedness, warehouse receipts together with a reasonably detailed description of the material terms and conditions of such Indebtedness or similar facilities entered into drafts of the documentation relating thereto, stating that Company has determined in good faith that such terms and conditions satisfy the foregoing requirement shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies Company within such five Business Day period that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees).
(i) Indebtedness representing deferred compensation to employees of Company and its Subsidiaries incurred in the ordinary course of business;
(h) guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of 15,000,000 at any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary Credit Party to any stockholder of the Borrower or any current or former directorofficers, officerdirectors and employees, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) estates, spouses or former spouses to finance the purchase or redemption of Capital Stock Equity Interests of the Borrower Holdings permitted by Section 6.04(a)6.6;
(pk) Indebtedness refinancingincurred by Holdings, refunding Company or replacing its Subsidiaries in any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded Disposition constituting indemnification obligations 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), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) 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 obligations in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing purchase price or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b)similar adjustments;
(q) [reserved];
(rl) Indebtedness consisting of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% obligations of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash Holdings, Company or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements incurred by such Person in connection with the Transactions, any Transaction and Permitted Acquisition Acquisitions or any other Investment expressly permitted herebyhereunder;
(um) Cash Management Obligations and other Indebtedness in respect of the Borrower and/or any Restricted Subsidiary netting services, overdraft protections and similar arrangements in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)))each case in connection with deposit accounts;
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aan) Indebtedness (including obligations incurred by Company or any of its Subsidiaries in respect of letters of credit, bank guarantiesguarantees, surety bonds, performance bonds bankers’ acceptances or similar instruments with respect to such Indebtedness) incurred by issued or created in the Borrower and/or any Restricted Subsidiary ordinary course of business, including in respect of workers compensation claims, unemployment insurance (including premiums related thereto), other types of social security, pension obligations, vacation pay, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claimsclaims and including Indebtedness under the Bilateral LC Facilities; provided that any reimbursement obligations in respect thereof are reimbursed within 30 days following the incurrence thereof;
(bbo) obligations in respect of performance, bid, appeal and surety bonds and performance and completion guarantees and similar obligations provided by Company or any of its Subsidiaries or obligations in respect of letters of credit, bank guarantees or similar instruments related thereto, in each case in the ordinary course of business or consistent with past practice;
(p) unsecured Indebtedness of Holdings (“Permitted Holdings Debt”) (i) that is not subject to any Guarantee by Company or any Subsidiary, (ii) that will not mature prior to the date that is 91 days after the Tranche C-2 Term Loan Maturity Date, (iii) that has no scheduled amortization or payments of principal (it being understood that such Indebtedness may have mandatory prepayment, repurchase or redemption provisions satisfying the requirements of clause (v) hereof), (iv) that does not require any payments in cash of interest or other amounts in respect of the principal thereof prior to the earlier to occur of (A) the date that is five (5) years from the date of the issuance or incurrence thereof and (B) the date that is 91 days after the Tranche C-2 Term Loan Maturity Date, and (v) that has mandatory prepayment, repurchase or redemption, covenant, default and remedy provisions customary for senior discount notes of an issuer that is the parent of a borrower under senior secured credit facilities, and in any event, with respect to covenant, default and remedy provisions, no more restrictive than those set forth in the Old Senior Subordinated Notes Indenture as of the Closing Date, taken as a whole (other than provisions customary for senior discount notes of a holding company); provided that a certificate of a Responsible Officer delivered to Administrative Agent at least five Business 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 Company has determined in good faith that such terms and conditions satisfy the foregoing requirement shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless Administrative Agent notifies Company within such five Business Day period that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees); provided, further, that any such Indebtedness shall constitute Permitted Holdings Debt only if (1) both before and after giving effect to the issuance or incurrence thereof, no Default shall have occurred and be continuing and (2) Education Management and its Subsidiaries will be in pro forma compliance with the covenants set forth in Section 6.10 (it being understood that any capitalized or paid-in-kind or accreted principal on such Indebtedness is not subject to this proviso);
(q) Indebtedness supported by a Letter of Credit, in a principal amount not to exceed the face amount of such Letter of Credit;
(r) Indebtedness in respect of the Senior Notes and any Permitted Refinancing thereof;
(s) Indebtedness consisting of the financing of insurance premiums in the ordinary course of business;
(t) Indebtedness of Qualified Non-Wholly-Owned Subsidiaries and Wholly Owned Subsidiaries of Company in an aggregate amount not to exceed at any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing time (and any guarantees and co-borrower obligations x) if, as of the Borrowerlast day of the immediately preceding Test Period (after giving pro forma effect to such Indebtedness) the Total Leverage Ratio is less than 4.50:1, $50,000,000 and (y) otherwise, $25,000,000;
(u) other Indebtedness of Company in an aggregate amount not to exceed at any Restricted Subsidiary that is a Loantime $200,000,000 to the extent incurred prior to the Amendment Agreement Effective Date; and
(v) all premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (u) above.
Appears in 1 contract
Sources: Amendment Agreement (Education Management Corporation)
Indebtedness. The Borrower shall will not, nor shall it and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create, incur, assume or otherwise become or remain liable with respect permit to exist any Indebtedness, except:
(a) Indebtedness under the Obligations (including any Additional Term Loans)Loan Documents;
(b) Indebtedness of the Borrower to any Restricted Subsidiary and/or of any Restricted Subsidiary owing to the Borrower and/or or any other Restricted Subsidiarywholly-owned Subsidiary of the Borrower; provided, provided that any (i) in the case of Indebtedness of any Loan Party owed owing to any Restricted Subsidiary that is not a Loan Party must Party, such Indebtedness shall be expressly subordinated to the Obligations of such Loan Party on terms evidenced by one or more promissory notes that are reasonably acceptable pledged to the Administrative Agent (including for the benefit of the Secured Parties pursuant to an Intercompany Note)the Security Agreement, (ii) in the case of any Indebtedness owing by a Loan Party to any Excluded Subsidiary, such Indebtedness shall be on subordination terms reasonably satisfactory to the Administrative Agent and (iii) such Indebtedness shall be otherwise permitted under the provisions of Section 6.04;
(c) [reserved]so long as no Default or Event of Default has occurred and is continuing, Purchase Money Obligations and Capital Lease Obligations of any Loan Party; provided that (i) any Liens securing such Indebtedness satisfy the requirements set forth in Section 6.02(c); and (ii) the aggregate principal amount of Indebtedness permitted by this clause (c) shall not exceed $10,000,000 at any time outstanding;
(d) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreementin respect of performance bonds, bid bonds, appeal bonds, surety bonds and similar obligations, in each case provided in the ordinary course of business;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary Loan Party under Swap Obligations incurred pursuant to Swap Agreements permitted by Section 6.07; provided that if such Swap Obligations relate to interest rates, (i) pursuant such Swap Obligations relate to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar payment obligations on Indebtedness otherwise permitted to be incurred in by the ordinary course of business Loan Documents and (ii) in respect the notional principal amount of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any such Swap Obligations at the time incurred does not exceed the principal amount of the foregoing itemsIndebtedness to which such Swap Obligations relate;
(f) Indebtedness incurred by Foreign Subsidiaries owing to any Person that was a Lender at the time such Indebtedness was incurred, in an amount not to exceed a Dollar Amount of $35,000,000 in the Borrower and/or aggregate for all Foreign Subsidiaries at 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 time outstanding;
(g) customary indemnification and purchase price adjustment obligations (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 earnouts) incurred in connection with Cash management Permitted Acquisitions and Deposit Accounts, including incentive, supplier finance or similar programsDispositions permitted under Section 6.05;
(ih) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness Guarantees incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(h) guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted lessors under Section 6.06operating leases;
(i) Indebtedness of owing under the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 described agreements set forth on Schedule 6.01;
(j6.01(i) [reserved];
(k) Indebtedness or to any Lenders or other financial institutions approved in writing by the Administrative Agent in its sole discretion in respect of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentiveagreement to provide cash management services, supplyincluding treasury, license depository, overdraft, credit 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 premiumsdebit card, (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 electronic funds transfer and other cash management arrangements in the ordinary course of business;
(mj) Guaranty Obligations in respect of Indebtedness of the Loan Parties otherwise permitted under this Section 6.01;
(k) the Canadian Intercompany Note; provided that, such Canadian Intercompany Note shall be pledged to the Administrative Agent for the benefit of the Secured Parties to the extent required to be pledged pursuant to the Security Agreement;
(l) Indebtedness of Foreign Subsidiaries owing to MediaMind pursuant to any Recharge Agreement, in the Borrower and/or any Restricted Subsidiary with respect aggregate amount set forth in and as otherwise evidenced by the MediaMind Intercompany Notes; provided that, such MediaMind Intercompany Notes shall be pledged to Capitalized Lease Obligations and purchase money the Administrative Agent for the benefit of the Secured Parties to the extent required to be pledged pursuant to the Security Agreement;
(m) unsecured Indebtedness of the Loan Parties of a type not otherwise described in this Section in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;7,500,000 at any time outstanding; and
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (x) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment date hereof and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(bSchedule 6.01(n);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a Loan.
Appears in 1 contract
Indebtedness. The Borrower Holdings shall not, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume assume, suffer to exist or otherwise become or remain liable with respect to any Indebtedness, except:
(a) the Obligations (including any Additional Term Loans)Obligations;
(b) Indebtedness of the Borrower Holdings to any Restricted Subsidiary and/or of any Restricted Subsidiary to the Borrower Holdings and/or any other Restricted Subsidiary; provided that in the case of any Indebtedness of any Subsidiary that is not a Loan Party owing to any Subsidiary that is a Loan Party, such Indebtedness shall be permitted as an Investment under Section 6.06; provided, further, that any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (acting at the direction of the Required Lenders) (including pursuant to an Intercompany Note);
(c) [reserved]Indebtedness of Holdings in respect of the Convertible Notes in an aggregate principal amount not to exceed $275,350,000;
(d) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower Holdings or any such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of the Borrower Holdings and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
(f) Indebtedness of the Borrower Holdings and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower Holdings and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower Holding’s and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(h) guarantees by the Borrower Holdings and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower Holdings or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06; provided further that this clause (h) shall not be permitted to be used to provide guarantees in respect of the Convertible Notes or any Asset Financing Facility;
(i) Indebtedness of the Borrower Holdings and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 1,000,000, described on Schedule 6.01;
(j) [reserved]intercompany liabilities in the ordinary course of business arising from (i) cash management, tax, and accounting operations of Holdings and its Subsidiaries or (ii) intercompany loans, advances or Indebtedness; provided that any such Indebtedness (x) has a term not exceeding 364 days (inclusive of any roll-over or extensions of terms), and (y) to the extent owed by any Loan Party owed to any Subsidiary that is not a Loan Party is unsecured and subordinated to the Obligations and subject to the Intercompany Note;
(k) Indebtedness of the Borrower Holdings and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower Holdings and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of Holdings, the Borrower Borrower, and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations Finance Leases and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 2,000,000 and 0.750.05% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial CovenantsSection 6.13 calculated on a Pro Forma Basis;
(o) Indebtedness consisting of promissory notes issued by the Borrower Holdings or any Restricted Subsidiary to any stockholder of the Borrower Holdings or any current or former director, officer, employee, member of management, manager or consultant of the Borrower Holdings or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower Holdings permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (ac), (i), (m), (n), (ru), (u) cc), and (zdd) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) other than with respect to a refinancing or replacement of the 2018-FL1 CLO, the principal amount of such Refinancing Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by replaced (Aother than (x) an with respect to the amount equal to unpaid accrued of any interest, penalties fees, and premiums (including tender premiums) thereon plus underwriting payable on the Indebtedness being refinanced, refunded or replaced and other fees, 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 such refinancing, refunding replacement or replacement refunding, including, to the extent customary and at then current market rates, any OID or upfront or similar fees payable generally to the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder holders of such Refinancing Indebtedness and (Cy) additional amounts otherwise permitted to be incurred pursuant to any other provision of 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 6.026.01),
(ii) other than in the case of such Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time),
(iii) [reserved],
(iv) in the case of such Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except replaced and such Refinancing Indebtedness is not guaranteed by any Person other than those Persons which were obligated or required to be obligated with respect to the extent otherwise permitted pursuant to Section 6.01Indebtedness that was refinanced, renewed or replaced,
(Civ) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) then such Refinancing Indebtedness is shall be contractually subordinated to the Obligations in right of paymenton terms and conditions that are, taken as a whole, at least as favorable to the Lenders as those that were applicable to the refinanced, renewed or replaced Indebtedness,
(yv) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is refinanced, renewed or replaced was secured by Liens on that are subordinated or junior to the Collateral shall be subject to any applicable Acceptable Intercreditor AgreementsLiens securing the Obligations, (B) such Indebtedness is not secured by any assets other than then the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of the refinancing, renewal or replacement must provide that such Replacement NotesRefinancing Indebtedness is (i) unsecured or (ii) secured by liens that are subordinated or junior to the Liens that secure the Obligations on terms that are, if taken as a whole, not substantially identical materially less favorable to those the Lenders than the Lien subordination terms applicable to the Indebtedness being refinanced refinanced, renewed or replaced,
(as determined vi) if the Indebtedness that is refinanced, renewed or replaced was secured by Liens that are pari passu with the Borrower in good faith)Liens securing the Obligations, must either, at then the option terms and conditions of the Borrowerrefinancing, renewal or replacement must provide that such Refinancing Indebtedness is (xi) not be materially more restrictive unsecured or (ii) secured by Liens that are pari passu, subordinated or junior to the Borrower and its Restricted Subsidiaries (as determined by Liens that secure the Borrower in good faith) than (when Obligations on terms that are, taken as a whole) those contained in , not materially less favorable to the Lenders than the Collateral sharing provisions applicable to the Indebtedness being refinanced refinanced, renewed or replaced, and
(other than any terms which are applicable only after vii) if the then-existing Latest Maturity Date with respect to such Indebtedness)Indebtedness that is refinanced, (y) be conformed (renewed or added) to replaced was unsecured, then the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at of the time of incurrence refinancing, renewal or issuance (as determined by the Borrower in good faith); it being understood and agreed replacement must provide 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 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);unsecured.
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”)[reserved];
(s) Indebtedness of the Borrower Holdings and/or any Restricted Subsidiary under any Derivative Interest Hedge Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower Holdings and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower Holdings and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower Holdings and/or any Restricted Subsidiary that does not constitute Indebtedness for borrowed money in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 2,500,000 and 3.20.06% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt[reserved];
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower Holdings 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility (and, to the extent on an unsecured basis, except as contemplated by subclause (i) below, (x) any Guarantees of Holdings with respect to the foregoing and (y) any Guarantee with respect to the foregoing constituting a grant of Permitted Liens on the Capital Stock referred to in the parenthetical at the end of subclause (i) below), in each case, (i) to the extent that such Indebtedness and obligations are not secured by the assets of any Loan Party (other than Capital Stock held by such Loan Party that constitutes Capital Stock issued by any Person that is not a Loan Party and is an obligor, or provides credit support, with respect to such Indebtedness) and (ii) so long as Holdings is in compliance with Section 6.13 calculated on a Pro Forma Basis;
(cc) Pari Passu Debt;
(dd) Subordinated Debt;
(ee) unfunded pension fund and other employee benefit plan obligations and liabilities incurred by Holdings and/or any Subsidiary in the ordinary course of business to the extent that the unfunded amounts would not otherwise cause an Event of Default under Section 7.01(i);
(ff) security deposits, diligence deposits, purchase price deposits, reserves, advance payments and similar monetary items (in each case, to the extent constituting Indebtedness of Holdings or any Subsidiary), received in the ordinary course of business (as determined in good faith by Holdings) from current or prospective borrowers under any CRE Finance Asset, tenants or other occupants, purchasers for the acquisition, refinancing or occupancy of, or Investment in, CRE Finance Assets;
(gg) Indebtedness incurred by a Securitization Subsidiary in a Qualified Securitization Financing that is not recourse (and except for Standard Securitization Undertakings) to Holdings or any guarantees and co-borrower obligations of the BorrowerSubsidiaries; and
(hh) without duplication of any other Indebtedness, all premiums (if any), interest (including post-petition interest and payment in kind interest), accretion or amortization of original issue discount, fees, expenses and charges with respect to Indebtedness of Holdings and/or any Restricted Subsidiary that is a Loanhereunder.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Granite Point Mortgage Trust Inc.)
Indebtedness. The Borrower shall notNo 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 (including any Additional Term Loans)Obligations;
(b) Indebtedness of the Borrower Company or any Guarantor to Company or to any Restricted Subsidiary and/or other Guarantor, or of Company to any Restricted Subsidiary to Guarantor or otherwise among the Borrower and/or any other Restricted SubsidiaryCredit Parties; provided, that any (i) all such Indebtedness of any Loan Party owed shall be evidenced by the Intercompany Note and Subordination, and shall be subject to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated First Priority Lien pursuant to the Obligations Pledge and Security Agreement (or an equivalent Collateral Document governed by foreign law) and (ii) all such Indebtedness shall be unsecured and subordinated in right of such Loan Party on terms that are reasonably acceptable payment to the Administrative Agent (including Payment in Full of all Obligations pursuant to an the terms of the Intercompany Note)Note and Subordination;
(c) [reserved]the Existing Convertible Notes and any Permitted Refinancing thereof and the 2029 Convertible Senior Notes and any Permitted Refinancing thereof;
(d) Indebtedness incurred by the Company or any of its Subsidiaries arising from any agreement (i) agreements providing for indemnification, adjustment of purchase price customary indemnification or similar obligations from customary performance guaranties or (including contingent earn-out obligationsii) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, bonds or performance bonds or similar instruments securing the performance of the Borrower Company or any such Restricted Subsidiary pursuant to such agreements in connection with Permitted Acquisitions or permitted dispositions of any such agreementbusiness, assets or Subsidiary of the Company or any of its Subsidiaries which, in the case of clause (ii) hereof, shall not exceed $2,500,000 in the aggregate at any time outstanding;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) that may be deemed to exist pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contractsany performance, surety, stay, customs, appeal, performance and/or return of money appeal or similar bonds or other similar statutory obligations incurred in the ordinary course of business business, and (ii) guarantee obligations in respect of letters of credit, bank guaranties, surety bonds, performance any such Indebtedness not to exceed $2,500,000 in the aggregate at any time outstanding; provided that such cap shall not apply to any such bonds or similar instruments to support any statutory obligations in accordance with Requirements of the foregoing itemsLaw;
(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 Cash Management Obligations and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) other Indebtedness in respect of letters of creditnetting services, bankers’ acceptancescash pooling, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into overdraft protections and other services provided in connection with deposit accounts and Cash Management Obligations in the ordinary course of business;
(g) Indebtedness existing as of the Closing Date and listed on Schedule 6.1 and any Permitted Refinancing thereof;
(h) guarantees guaranties by the Borrower and/or any Restricted Company of Indebtedness of a Guarantor or guaranties by a Subsidiary of the Company of Indebtedness or other obligations of the Borrower Company or any Restricted Subsidiary a Guarantor with respect respect, in each case, to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 6.1; provided, that if the Indebtedness that is being guaranteed is unsecured and/or subordinate to the Obligations (in payment or other obligations not prohibited by this Agreement; provided that in Lien priority), then such guaranties shall also be unsecured and/or subordinated to the case of any Guarantee by any Loan Party of Obligations to the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06same extent as such guaranteed Indebtedness;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent in excess constituting Indebtedness, judgments that do not constitute an Event of $6,000,000 described on Schedule 6.01Default hereunder;
(j) [reserved]Indebtedness in an aggregate amount not to exceed at any time $2,500,000 consisting of (x) Capital Lease Obligations and (y) other purchase money Indebtedness, in each case incurred simultaneously with, prior to or within 180 days after the acquisition of assets in connection therewith; 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;
(k) Indebtedness obligations under Hedge Agreements that are not for speculative purposes and are approved by a Direction of the Borrower and/or any Restricted Subsidiary consisting Requisite Lenders;
(l) letters of obligations owing under incentivecredit, supplybankers’ acceptances, license guarantees or other similar agreements entered into instruments incurred in the ordinary course of businessbusiness securing the performance of operating leases or payor contracts not to exceed, in the aggregate at any time outstanding, $2,500,000;
(lm) ▇▇▇▇▇▇▇▇ and seller financing constituting Subordinated Indebtedness in connection with Permitted Acquisitions;
(n) Indebtedness consisting of obligations to make payments to current or former officers, directors and employees of the Borrower and/or Company or any Restricted Subsidiary of its Subsidiaries, their respective estates, spouses or former spouses with respect to the cancellation, purchase or redemption of Capital Stock of the Company or any of its Subsidiaries to the extent such cancellation, purchase or redemption is permitted under Section 6.5;
(o) Indebtedness incurred by the Company or its Subsidiaries consisting of (i) the financing of the payment of insurance premiums, premiums or (ii) take-or-take or pay obligations contained in supply arrangementsagreements, in each case, in the ordinary course of business and/or or consistent with past practice, and customer deposits and advance payments received in the ordinary course of business or consistent with past practice from customers for goods or services purchased in the ordinary course of business or consistent with past practice;
(iiip) obligations to reacquire assets Indebtedness secured by ▇▇▇▇▇▇▇ (b), (c), (d), (i), (o) and (q) of the definition of “Permitted Liens”;
(q) Indebtedness arising from the honoring by a bank or inventory other financial institution of a check, draft, or similar instrument drawn against insufficient funds in connection with customer financing arrangements the ordinary course of business or other cash management services in the ordinary course of business;
(mr) Indebtedness in the form of reimbursements owed to officers, directors, managers, consultants and employees of the Borrower and/or any Restricted Subsidiary with respect to Capitalized Lease Obligations and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower Company or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock for business expenses of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u) and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (x) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r) and (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r) and (u) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower Company or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”)Subsidiary;
(s) Indebtedness Acquired Debt; provided that the aggregate outstanding amount of all of the Borrower and/or Acquired Debt shall not exceed $10,000,000 at any Restricted Subsidiary under any Derivative Transaction one time outstanding; provided, further that prior to a Registrational Trial Positive Readout, Acquired Debt shall not entered into for speculative purposesexceed $2,500,000 in the aggregate;
(t) Indebtedness of under the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, Healthcare Royalty Partners Facility and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;Refinancing thereof; and
(u) other Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount Company and its Subsidiaries not to exceed an aggregate principal amount equal to $5,000,000 at any time outstanding of which not more than $1,000,000 may be secured Indebtedness pursuant to Section 6.2(w). Notwithstanding anything in this Section 6.1 to the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Periodcontrary, plus (ii) at the election of the Borrower (and without duplication)in no event shall any Credit Party or Subsidiary thereof enter into, or incur any Indebtedness pursuant to, any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) royalty financing (provided that other than the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations Healthcare Royalty Partners Facility as in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by effect on the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (date hereof and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a LoanPermitted Refinancing thereof).
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Karyopharm Therapeutics Inc.)
Indebtedness. The Borrower shall not, nor shall it permit any of its the Restricted Subsidiaries to, directly or indirectly, create, incur, assume or otherwise become or remain liable with respect to any Indebtedness, except:
(a) the Secured Obligations (including any Additional Term Loans and any Additional Revolving Loans);
(b) Indebtedness of the Borrower to any Restricted Subsidiary and/or or of any Restricted Subsidiary to the Borrower and/or or any other Restricted Subsidiary; provided that in the case of any Indebtedness of any Restricted Subsidiary that is not a Loan Party owing to any Loan Party, solely to the extent the related Investment shall be a Permitted Investment or permitted under Section 6.04(a); and provided, further, that any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated in right of payment to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note)Obligations;
(c) [reservedReserved];
(d) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing ClosingSixth Amendment Effective Date and not in contemplation thereof or any other purchase of assets or Capital Stock, and Indebtedness arising from guaranteesguaranties, letters of credit, bank guaranteesguaranties, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of the Borrower and/or or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or 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 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 AccountsBanking Services, including Banking Services Obligations and incentive, supplier finance or similar programs;
(i) guarantees guaranties by the Borrower and/or 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 or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets goods or Real Estate Investments services or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(h) guarantees Guarantees by the Borrower and/or or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement6.01; provided that in the case of any Guarantee by any 151 Loan Party of the obligations of any non-Loan Party, the related Investment is a Permitted Investment or is permitted under Section 6.066.04(a);
(i) Indebtedness of the Borrower and/or or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing ClosingSixth Amendment Effective Date and, to in the extent case of any such Indebtedness with an aggregate outstanding principal amount in excess of $6,000,000 1,000,0005,000,000, described on Schedule 6.016.01(i);
(j) [reserved]Indebtedness of Restricted Subsidiaries that are not Loan Parties; provided that the aggregate outstanding principal amount of such Indebtedness shall not exceed (together with any Indebtedness of a non-Loan Party pursuant to Sections 6.01(q) and (w)(ii)) the greater of $145,000,000400,000,000 and 35.050.0% of Consolidated Adjusted EBITDA for the most recently ended Test Period;
(k) Indebtedness of the Borrower and/or 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 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 or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or or any Restricted Subsidiary with respect to Capitalized Lease Obligations Capital Leases and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $33,000,000 75,000,000280,000,000 and 0.7518.035.0% of Consolidated Total Assets as of the last day of Adjusted EBITDA for the most recently ended Test Period, so long as the Borrower is in pro forma compliance with the Financial Covenants;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary (except as otherwise permitted herein) and (ii) the Borrower is in pro forma compliance with the Financial Covenants[Reserved];
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower 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 any Parent Company permitted by Section 6.04(a);
(p) the Borrower and the Restricted Subsidiaries may become and remain liable for any Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (j), (m), (nq), (r), (u) ), (w), (y), and (z) of this Section 6.01 (in any case, including any refinancing Indebtedness incurred in respect thereof, “Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereofthereof and such Refinancing Indebtedness shall be deemed permitted and outstanding under such clauses; provided that:
(i) the principal amount of such Refinancing Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by by
(A) an amount equal to unpaid accrued interest, penalties interest and premiums (including tender premiums) thereon plus underwriting discounts, 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 the related refinancing transactionreplacement, (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 (x1) any additional Indebtedness referenced in this 152 clause (C) satisfies the other applicable requirements of this definition 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 (y2) if such additional Indebtedness is secured, the Lien securing such Refinancing Indebtedness satisfies the applicable requirements of is permitted under Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (nq)(i), (rq)(ii) and or (u) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity such Refinancing Indebtedness Exception, 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 Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such timereplaced,
(iii) [reserved],
(iv) in the case 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 Indebtedness permitted under clauses (m), (r) and (u) 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) above, security), are not, taken as a whole (as reasonably determined by the Borrower), more favorable to the lenders providing such Refinancing Indebtedness than those applicable to the Indebtedness being refinanced, refunded or replaced (other than (A) any covenants or any other provisions applicable only to periods after the Latest Maturity Date as of such date, (B) any covenants or other provisions which constitute then-current market terms for the applicable type of Indebtedness or (C) any covenants or other provisions which are conformed (or added) to the Loan Documents for the benefit of the Lenders or the Administrative Agent, as applicable, pursuant to an amendment to this Agreement effectuated in reliance on Section 6.01 incurred as Replacement Term Loans9.02(d)(ii)),
(iv) [Reserved],
(v) except in the case of Refinancing Credit Facilities Indebtedness, (A) the primary obligor in respect of the applicable Refinancing Indebtedness shall have been the primary obligor in respect of the relevant refinanced Indebtedness, (B) 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), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (BC) 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, (CD) if the Indebtedness being refinanced, refunded or replaced was expressly originally contractually subordinated to the Obligations in right of paymentpayment (or the Liens securing such Refinancing Indebtedness were originally contractually subordinated to the Liens on the Collateral securing the Secured Obligations), (x) such Refinancing Indebtedness is contractually subordinated to the Obligations in right of payment, payment (or (y) if not contractually the Liens securing such Refinancing Indebtedness are subordinated to the Obligations in right Liens on the Collateral securing the Secured Obligations) 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 (E) as of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement date of the incurrence of such Refinancing Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i)and after giving effect thereto, no Event of Default exists, and
(vi) in the case of Replacement NotesRefinancing Credit Facilities Indebtedness, (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, hereunder or 153 is unsecured; provided that any such Refinancing Indebtedness that is secured by Liens on pari passu or junior with respect to the Collateral shall be subject to any applicable an Acceptable Intercreditor AgreementsAgreement, (B) if such Refinancing Indebtedness is secured, it is not secured by any assets other than the Collateral and shall not be incurred or guaranteed by any Person other than one or more Loan PartiesCollateral, (C) if such Refinancing Indebtedness is Guaranteed, it shall not be Guaranteed by any Person that is not a Loan Party, and (D) such Refinancing Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed provided that any such Refinancing Indebtedness consisting of term loans that is are 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 Term Loans may participate on a first lien pro rata basis may participate or a less than pro rata basis (xbut not greater than a pro rata basis) in any voluntary prepayments or mandatory prepayment in respect of the Tranche B-2 Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of 2021 Incremental-3 Term Loans (and any Additional Term Loans then subject to ratable repayment requirements), in each case as set forth in Section 2.11(b)the Borrower and the relevant lender may agree;
(q) [reserved]Indebtedness (i) assumed in connection with any acquisition or other Investment permitted hereunder consummated after the Closing Date, or existing at the target of any such acquisition or Investment at the time it becomes a Subsidiary, provided that any such Indebtedness was not incurred by the target of such acquisition or other Investment in contemplation of such acquisition or other Investment, (ii) existing at the time an Unrestricted Subsidiary becomes a Restricted Subsidiary if such Indebtedness was not incurred in contemplation of such Person becoming a Restricted Subsidiary or (iii) incurred in connection with any acquisition or other Investment permitted hereunder and consummated after the Closing Date; provided that, in each case, (A) at the time such Person becomes a Restricted Subsidiary or at the time of the execution of the definitive agreement governing such acquisition or other Investment, as the case may be, on a Pro Forma Basis for the most recently ended Test Period, the Total Leverage Ratio would not exceed 4.50:1.00, (B) the aggregate outstanding principal amount of such Indebtedness incurred in reliance on clause (iii) above by Restricted Subsidiaries that are not Loan Parties
(I) shall not exceed (together with any Indebtedness of a non-Loan Party pursuant to Sections 6.01(j) and (w)(ii)) the greater of $145,000,000400,000,000 and 35.050.0% of Consolidated Adjusted EBITDA for the most recently ended Test Period, (II) shall 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 payments as part of an “applicable high yield discount obligation” catch-up payment, customary offers to repurchase in connection with any change of control, Disposition or casualty event and customary acceleration rights after an event of default), in each case, prior to the Latest Term Loan Maturity Date, and (III) the Weighted Average Life to Maturity applicable to such Indebtedness shall not be shorter than the Weighted Average Life to Maturity of the then-existing Term Loans, (C) at the time such Person becomes a Restricted Subsidiary or at the time of the execution of the definitive agreement governing such acquisition or other Investment, as the case may be, no Event of Default shall have occurred and be continuing, and (D) in the case of any such Indebtedness in the form of term loans that areis denominated in Dollars and is pari passu with the Tranche B-2 Term Loans or the 2021 Incremental-3 Term Loans with respect to security (other than any such Indebtedness that constitutes MFN Adjustment Excluded Indebtedness), the Effective Yield applicable thereto (as determined on the date of initial incurrence thereof) will not be more than 0.50% per annum higher than the Effective Yield in respect of the Tranche B-2 Term Loans or the 2021 Incremental-3 Term Loans (as determined on such date), as applicable, unless the Effective Yield with respect to the Tranche B-2-3 Term Loans or the 2021 Incremental Term Loans, as applicable, is adjusted to be equal to such Effective Yield applicable to such Indebtedness, minus, 0.50% per annum; provided that solely with respect to 2021 Incremental Term Loans, this clause (D) shall only apply through and including the date that is 12six months after the ThirdSixth Amendment Effective Date;
(r) unsecured Indebtedness of the Borrower and/or or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200100.0% of the amount of Net Proceeds received by the Borrower from (i) the issuance or sale of Qualified Capital Stock or (ii) any cash contribution (made in Cash or converted into Cash) to the its common equity of with the Borrower and Net Proceeds from the issuance and sale by the Borrower any Parent Company of its Qualified Capital StockStock or a contribution to the common equity of any Parent Company, in each case, (iA) other than any Net Proceeds received from (I) the Cure Amount or (II) the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries Subsidiary and (iiB) other than to the Available Excluded Contribution Amount, a Cure Amount and amounts otherwise applied under extent the Available Amount to incur a transaction (the amount of any relevant Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”)are Not Otherwise Applied;
(s) Indebtedness of the Borrower and/or or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or 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 or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $140,000,000 and 3.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower 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 or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(bb) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing (and any guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a LoanSubsidia
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