Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except: (a) the Obligations (excluding Hedging Obligations permitted pursuant to Section 11.1(b)); (b) Indebtedness incurred in connection with a Hedging Agreement with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory to the Administrative Agent; provided, that any counterparty that is a Lender shall be deemed satisfactory to the Administrative Agent; (c) Indebtedness existing on the Third Amendment Effective Date and not otherwise permitted under this Section and listed on Schedule 11.1, and the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) thereof; (d) purchase money Indebtedness and Indebtedness incurred in connection with Capital Leases in an aggregate amount not to exceed $40,000,000 on any date of determination; (e) Guaranty Obligations of any Subsidiary in favor of the Administrative Agent for the benefit of the Administrative Agent and the Lenders; (f) Guaranty Obligations of any Subsidiary with respect to Indebtedness permitted pursuant to subsections (a) through (d) of this Section; (g) Indebtedness (i) of a Person that becomes a Subsidiary of the Borrower after the Closing Date in connection with any Permitted Acquisition or (ii) assumed in connection with any assets acquired in connection with any Permitted Acquisition, and the refinancing, refunding, renewal and extension (but not the increase in the aggregate principal amount) thereof; provided, that such Indebtedness (x) exists at the time such Person becomes a Subsidiary or such assets are acquired and is not created in contemplation of, or in connection with, such Person becoming a Subsidiary or such assets being acquired and (y) shall not exceed $35,000,000 in the aggregate on any date of determination; (h) Indebtedness owed by any Subsidiary Guarantor to another Credit Party; (i) Subordinated Indebtedness; provided that in the case of each issuance of Subordinated Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Subordinated Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a Pro Forma Basis after giving effect to the issuance of any such Subordinated Indebtedness; (j) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, bankers acceptances, letters of credit, surety bonds or other similar obligations arising in the ordinary course of business, and any refinancings thereof to the extent not provided to secure the repayment of other Indebtedness; (k) Indebtedness owed by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party; (l) (i) Indebtedness owed by any Credit Party to any Subsidiary which is not a Credit Party or by any Subsidiary which is not a Credit Party to a Credit Party, in each case, existing on the Closing Date, (ii) the S1 Intercompany Loans in an aggregate principal amount not to exceed $200,000,000, (iii) the TargetCo Intercompany Loans in an aggregate principal amount not exceed $35,000,000 and (iv) Indebtedness owed by (A) any Credit Party to any Subsidiary which is not a Credit Party; provided that such Indebtedness shall be subordinated to the Obligations in a manner reasonably satisfactory to the Administrative Agent and (B) any Subsidiary which is not a Credit Party to any Credit Party; provided that the aggregate amount of all such intercompany Indebtedness permitted pursuant to the foregoing clauses (A) and (B), together with any equity or capital investments permitted pursuant to Section 11.3(h)(ii), in each case incurred or made after the Third Amendment Effective Date, shall not exceed, as of the date such Indebtedness is incurred, made or increased, the greater of (A) $75,000,000 and (B) five percent (5%) of Consolidated Total Assets as of such date of determination (provided that in making such determination, such amount shall be calculated as the net balance of such loans, advances and equity or capital investments (as of such date of determination) as reduced by any repayments or distributions made with respect thereto (as of such date of determination)); provided, further, that, any Indebtedness owed to any Credit Party pursuant to this clause (l) shall be evidenced by a promissory note in form and substance reasonably satisfactory to the Administrative Agent and shall be pledged and delivered to the Administrative Agent pursuant to the Security Documents; (m) senior unsecured Indebtedness; provided, that: (i) the Borrower and its Subsidiaries shall be in pro forma compliance (as of the date of the incurrence of such Indebtedness and after giving effect thereto) with each covenant contained in Article X; (ii) no Default or Event of Default has occurred and is continuing at the time of such incurrence (or would exist after giving effect thereto); (iii) such Indebtedness shall rank no higher than pari passu in right of payment with the Obligations; (iv) such Indebtedness is not subject to any scheduled amortization, mandatory redemption, mandatory repayment or mandatory prepayment, sinking fund or similar payment (other than, in each case, reasonable and customary offers to repurchase upon a change of control or asset sale and acceleration rights after an event of default) or have a final maturity date, in either case prior to the date occurring one (1) year following the latest of the Revolving Credit Maturity Date, the Term Loan Maturity Date or any maturity date of any Incremental Term Loan (in effect as of the date such Indebtedness is incurred) and such Indebtedness shall have a weighted average life to maturity that is no shorter than the weighted average life to maturity of each of the then outstanding Term Loans (provided that any Indebtedness that automatically converts to, or is exchangeable into, notes or other Indebtedness that meet this clause (iv) shall be deemed to satisfy this condition so long as the Borrower irrevocably agrees at the time of the issuance thereof to take all actions necessary to convert or exchange such Indebtedness); (v) the indenture or other applicable agreement governing such Indebtedness (including any related guaranties and any other related documentation) shall not include any financial performance “maintenance” covenants (whether stated as a covenant, default or otherwise, although “incurrence-based” financial tests may be included) or cross-defaults (but may include cross-defaults at the final stated maturity thereof and cross-acceleration); (vi) the terms of such Indebtedness (including, without limitation, all covenants, defaults, guaranties and remedies, but excluding provisions as to interest rate, call protection and redemption premiums), taken as a whole, are no more restrictive or onerous than the terms applicable to the Borrower and its Subsidiaries under this Agreement and the other Loan Documents, (vii) such Indebtedness shall not be recourse to, or guaranteed by, any Person that is not a Credit Party, (viii) prior to the incurrence of such Indebtedness the Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower certifying as to compliance with the requirements of the preceding clauses (i) through (vii) above and containing calculations, in form and substance reasonably satisfactory to the Administrative Agent with respect to clause (i) above and (ix) to the extent such Indebtedness exceeds $350,000,000, the amount of such excess shall be used to prepay the Loans in accordance with Section 4.5(b)(i); and (n) additional Indebtedness of the Subsidiaries not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed $75,000,000.
Appears in 1 contract
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) the Notes and the Obligations (excluding Hedging Specified Hedge Obligations permitted pursuant to Section 11.1(b9.1(b))) or any guaranty of or suretyship arrangement for the Notes or other Obligations;
(b) Indebtedness incurred and obligations owing under Hedging Agreements entered into in connection with a Hedging Agreement with a counterparty and upon terms and conditions (including order to manage existing or anticipated interest rate) reasonably satisfactory to the Administrative Agent; provided, that any counterparty that is a Lender shall be deemed satisfactory to the Administrative Agentexchange rate or commodity price risks and not for speculative purposes;
(c) Indebtedness existing on the Third Amendment Effective Closing Date and not otherwise permitted under this Section 9.1 and listed on Schedule 11.1, and the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) thereof9.1;
(d) Indebtedness incurred in connection with Capital Leases and purchase money Indebtedness in an aggregate amount not to exceed the greater of (i) $25,000,000 and (ii) 1.0% of Consolidated Net Tangible Assets as of the end of the fiscal quarter ending immediately prior to the date of such incurrence for which financial statements are available (as determined at the time of such incurrence);
(e) Indebtedness of a Person existing at the time such Person became a Subsidiary or assets were acquired from such Person in connection with an Investment permitted pursuant to Section 9.3, to the extent that (i) such Indebtedness was not incurred in connection with, or in contemplation of, such Person becoming a Subsidiary or the acquisition of such assets and (ii) neither the Borrower nor any Consolidated Subsidiary thereof (other than such Person or any other Person that such Person merges with or that acquires the assets of such Person) shall have any liability or other obligation with respect to such Indebtedness;
(f) Guaranty Obligations with respect to Indebtedness permitted pursuant to this Section 9.1;
(g) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(h) Intercompany Debt, provided, that (i) any such Intercompany Debt owing to a Credit Party in excess of $10,000,000 is evidenced by an Intercompany Note which has been pledged to secure the Obligations and is in the possession of the Collateral Agent, and (ii) any Intercompany Debt is subordinated to the Obligations in accordance with Section 7.7(e) upon terms and conditions satisfactory to the Collateral Agent;
(i) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or other similar instrument drawn against insufficient funds in the ordinary course of business;
(j) Indebtedness under bid bonds, performance bonds, surety bonds, release, appeal and similar bonds (including guarantees and obligations with respect to letters of credit or other support of any such bond and Indebtedness associated with any such bonds or surety obligations pursuant to any Applicable Law in connection with the operation of any Pipeline Properties), statutory obligations or with respect to workers’ compensation claims, in each case incurred in the ordinary course of business, and reimbursement obligations in respect of any of the foregoing;
(k) Indebtedness of the Borrower to the General Partner to enable the General Partner to pay general and administrative costs and expenses of the Borrower substantially in accordance with past practices;
(l) Indebtedness representing deferred compensation and other similar arrangements to employees of the Borrower and its Consolidated Subsidiaries incurred in the ordinary course of business;
(m) Indebtedness incurred by the Borrower or its Consolidated Subsidiaries in an acquisition or Asset Disposition under agreements providing for indemnification, the adjustment of the purchase price or other similar adjustments and earn-outs or similar obligations;
(n) Indebtedness in respect of netting services, overdraft protections and similar arrangements in each case in connection with cash management or deposit accounts;
(o) Indebtedness incurred by the Borrower or any of its Consolidated Subsidiaries constituting reimbursement obligations with respect to letters of credit, bank guarantees or similar instruments issued in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to similar reimbursement type obligations; provided that upon the drawing of such letters of credit or the incurrence of such Indebtedness, such obligations are reimbursed within 30 days following such drawing or incurrence;
(p) guarantees of Subsidiary obligations (other than obligations for borrowed money);
(q) Indebtedness of the Borrower incurred in connection with a senior or subordinated unsecured note offering, or any unsecured bridge loan incurred in connection with or in lieu of any such senior or subordinated unsecured note offering, or any other unsecured Indebtedness, provided that (i) no Event of Default has occurred and is continuing or would occur after giving effect to such incurrence, (ii) after giving effect to the incurrence of such Indebtedness on a Pro Forma Basis, the Borrower shall be in compliance with all covenants set forth in Article VIII as of the most recently ended fiscal quarter of the Borrower, (iii) has a final maturity date no earlier than the date that is 180 days after the final maturity date of the Revolver Facility and (iv) the documentation for which contains financial covenants no more restrictive than those set forth in this Agreement;
(r) Indebtedness incurred in connection with Capital Leases in an aggregate amount not to exceed $40,000,000 on respect of any date of determinationSale and Lease-Back Transaction that is permitted under Section 9.12;
(es) Guaranty Obligations of any Subsidiary in favor of the Administrative Agent for the benefit of the Administrative Agent and the Lenders;
(f) Guaranty Obligations of any Subsidiary with respect to additional Indebtedness not otherwise permitted pursuant to subsections (a) through (d) of this Section;
(g) Indebtedness (i) of a Person that becomes a Subsidiary of the Borrower after the Closing Date in connection with any Permitted Acquisition or (ii) assumed in connection with any assets acquired in connection with any Permitted Acquisition, and the refinancing, refunding, renewal and extension (but not the increase in the aggregate principal amount) thereof; provided, that such Indebtedness (x) exists at the time such Person becomes a Subsidiary or such assets are acquired and is not created in contemplation of, or in connection with, such Person becoming a Subsidiary or such assets being acquired and (y) shall not exceed $35,000,000 in the aggregate on any date of determination;
(h) Indebtedness owed by any Subsidiary Guarantor to another Credit Party;
(i) Subordinated Indebtedness; provided that in the case of each issuance of Subordinated Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Subordinated Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a Pro Forma Basis after giving effect to the issuance of any such Subordinated Indebtedness;
(j) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, bankers acceptances, letters of credit, surety bonds or other similar obligations arising in the ordinary course of business, and any refinancings thereof to the extent not provided to secure the repayment of other Indebtedness;
(k) Indebtedness owed by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(l) (i) Indebtedness owed by any Credit Party to any Subsidiary which is not a Credit Party or by any Subsidiary which is not a Credit Party to a Credit Party, in each case, existing on the Closing Date, (ii) the S1 Intercompany Loans Section 9.1 in an aggregate principal amount not to exceed $200,000,000, (iii) the TargetCo Intercompany Loans in an aggregate principal amount not exceed $35,000,000 and (iv) Indebtedness owed by (A) any Credit Party to any Subsidiary which is not a Credit Party; provided that such Indebtedness shall be subordinated to the Obligations in a manner reasonably satisfactory to the Administrative Agent and (B) any Subsidiary which is not a Credit Party to any Credit Party; provided that the aggregate amount of all such intercompany Indebtedness permitted pursuant to the foregoing clauses (A) and (B), together with any equity or capital investments permitted pursuant to Section 11.3(h)(ii), in each case incurred or made after the Third Amendment Effective Date, shall not exceed, as of the date such Indebtedness is incurred, made or increased, the greater of (Ai) $75,000,000 50,000,000 and (Bii) five percent (5%) 2.0% of Consolidated Total Net Tangible Assets as of such the end of the fiscal quarter ending immediately prior to the date of determination such incurrence for which financial statements are available (provided that in making such determination, such amount shall be calculated as determined at the net balance time of such loansincurrence);
(t) any Refinancing Indebtedness in respect of any Indebtedness permitted under clauses (c), advances (d), (e) and equity or capital investments (as s) of such date of determination) as reduced by any repayments or distributions made with respect thereto (as of such date of determination))this Section 9.1; provided, further, that, any Indebtedness owed to any Credit Party pursuant to this clause (l) shall be evidenced by a promissory note in form and substance reasonably satisfactory to the Administrative Agent and shall be pledged and delivered to the Administrative Agent pursuant to the Security Documents;
(m) senior unsecured Indebtedness; provided, that: (i) the Borrower and its Subsidiaries shall be in pro forma compliance (that as of the date of the incurrence of incurring such Refinancing Indebtedness and after giving effect thereto) with each covenant contained in Article X; (ii) , no Default or Event of Default has shall exist or have occurred and is continuing at the time of such incurrence (or would exist after giving effect thereto); (iii) such Indebtedness shall rank no higher than pari passu in right of payment with the Obligations; (iv) such Indebtedness is not subject to any scheduled amortization, mandatory redemption, mandatory repayment or mandatory prepayment, sinking fund or similar payment (other than, in each case, reasonable and customary offers to repurchase upon a change of control or asset sale and acceleration rights after an event of default) or have a final maturity date, in either case prior to the date occurring one (1) year following the latest of the Revolving Credit Maturity Date, the Term Loan Maturity Date or any maturity date of any Incremental Term Loan (in effect as of the date such Indebtedness is incurred) and such Indebtedness shall have a weighted average life to maturity that is no shorter than the weighted average life to maturity of each of the then outstanding Term Loans (provided that any Indebtedness that automatically converts to, or is exchangeable into, notes or other Indebtedness that meet this clause (iv) shall be deemed to satisfy this condition so long as the Borrower irrevocably agrees at the time of the issuance thereof to take all actions necessary to convert or exchange such Indebtedness); (v) the indenture or other applicable agreement governing such Indebtedness (including any related guaranties and any other related documentation) shall not include any financial performance “maintenance” covenants (whether stated as a covenant, default or otherwise, although “incurrence-based” financial tests may be included) or cross-defaults (but may include cross-defaults at the final stated maturity thereof and cross-acceleration); (vi) the terms of such Indebtedness (including, without limitation, all covenants, defaults, guaranties and remedies, but excluding provisions as to interest rate, call protection and redemption premiums), taken as a whole, are no more restrictive or onerous than the terms applicable to the Borrower and its Subsidiaries under this Agreement and the other Loan Documents, (vii) such Indebtedness shall not be recourse to, or guaranteed by, any Person that is not a Credit Party, (viii) prior to the incurrence of such Indebtedness the Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower certifying as to compliance with the requirements of the preceding clauses (i) through (vii) above and containing calculations, in form and substance reasonably satisfactory to the Administrative Agent with respect to clause (i) above and (ix) to the extent such Indebtedness exceeds $350,000,000, the amount of such excess shall be used to prepay the Loans in accordance with Section 4.5(b)(i)continuing; and
(nu) all premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional Indebtedness of the Subsidiaries not otherwise permitted pursuant to this Section or contingent interest on obligations described in an aggregate amount outstanding not to exceed $75,000,000paragraphs (a) through (t) above.
Appears in 1 contract
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) the Obligations (excluding Hedging Obligations Bank Product Debt permitted pursuant to Section 11.1(b10.1(b));
(b) Indebtedness incurred in connection with a Bank Products and other Hedging Agreement Agreements with a counterparty (other than a Lender or an Affiliate of a Lender) and upon terms and conditions (including interest rate) reasonably satisfactory to the Administrative Agent; provided, that any counterparty that is a Lender shall be deemed satisfactory to the Administrative Agent;
(c) Indebtedness existing on of the Third Amendment Effective Date Company and not otherwise permitted under this Section and listed on Schedule 11.1, and the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) thereof;
(d) purchase money Indebtedness and Indebtedness its Restricted Subsidiaries incurred in connection with Capital Leases and purchase money Indebtedness in an aggregate amount not to exceed $40,000,000 70,000,000105,000,000 on any date of determination;
(ed) Guaranty Obligations of with respect to Indebtedness permitted under this Section 10.1;
(e) Indebtedness owed by (i) any Domestic Credit Party to any other Domestic Credit Party or any Domestic Subsidiary that is a Restricted Subsidiary so long as such Domestic Subsidiary becomes a Domestic Credit Party within the time period specified by Section 8.11(a), (ii) any Foreign Obligor to any other Foreign Obligor, (iii) any Restricted Subsidiary that is not a Credit Party to any other Restricted Subsidiary that is not a Credit Party, (iv) any Restricted Subsidiary that is not a Guarantor to any Credit Party in an aggregate amount not to exceed $40,000,00060,000,000 at any time outstanding, (v) any Domestic Credit Party to any Restricted Subsidiary that is not a Guarantor or an Unrestricted Subsidiary in favor of an aggregate amount not to exceed $40,000,00060,000,000 at any time outstanding or (vi) any Restricted Subsidiary to the Administrative Agent for Company or any other Restricted Subsidiary, pursuant to an Investment permitted by Section 10.3(h)(iii) (collectively, the benefit of the Administrative Agent and the Lenders“Intercompany Debt”);
(f) Guaranty Obligations of any Subsidiary with respect to unsecured Indebtedness permitted pursuant to subsections (a) through (d) of this Section;
(g) and Subordinated Indebtedness (i) of a Person that becomes a Subsidiary of the Borrower after the Closing Date in connection with any Permitted Acquisition or (ii) assumed in connection with any assets acquired in connection with any Permitted Acquisition, and the refinancing, refunding, renewal and extension (but not the increase in the aggregate principal amount) thereof; provided, that such Indebtedness (x) exists at the time such Person becomes a Subsidiary or such assets are acquired and is not created in contemplation of, or in connection with, such Person becoming a Subsidiary or such assets being acquired and (y) shall not exceed $35,000,000 in the aggregate on any date of determination;
(h) Indebtedness owed by any Subsidiary Guarantor to another Credit Party;
(i) Subordinated Indebtedness; provided that in the case of each issuance of Subordinated Indebtednesssuch Indebtedness at the time of issuance, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Subordinated Indebtedness and Indebtedness, (ii) the Administrative Agent shall have received reasonably satisfactory written evidence that the Borrower Company would be in compliance with all covenants contained in this Agreement Sections 9.1 and 9.2 on a Pro Forma Basis pro forma basis after giving effect to the issuance of any such Subordinated Indebtedness, and (iii) (x) the maturity date of such Indebtedness shall be no earlier than the date which is six months following the Maturity Date and such Indebtedness shall not be subject to amortization or prepayment prior to such date (other than any such amortization or prepayments permitted to be paid under the applicable intercreditor or subordination agreement with respect to such Indebtedness as to which the Administrative Agent is a party) and (y) the financial covenants and events of default to which such Indebtedness is subject are not more restrictive, when taken as a whole, than the financial covenants and the Events of Default under this Agreement, as determined in good faith by the Company and the Administrative Agent (provided, that, if the Administrative Agent fails to object to such determination of the Company within three (3) Business Days after receipt of written notification thereof, the Administrative Agent will be deemed to have agreed with the Company’s determination), unless the Company agrees to amend this Agreement such that the conditions in this clause (iii) would be satisfied upon the execution of such amendment;
(g) Indebtedness incurred by the Company or any Restricted Subsidiary thereof arising from agreements providing for indemnification, adjustment of purchase price or similar obligations incurred or assumed in connection with any Permitted Acquisition to the extent permitted pursuant to Section 10.3(g);
(h) Indebtedness of Foreign Subsidiaries of the Company that are Restricted Subsidiaries in an aggregate principal amount not to exceed $50,000,00075,000,000 at any time outstanding; provided that such Indebtedness shall at all times be and remain non-recourse to any Credit Party and, at the time of such issuance, no Default or Event of Default exists;
(i) [Intentionally Omitted];
(j) other Indebtedness, in an aggregate amount not to exceed $25,000,00037,500,000 at any time outstanding for this clause (j);
(k) Indebtedness existing on the ClosingThird Amendment Effective Date and listed on Schedule 10.1 and the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) thereof;
(l) other Indebtedness in an aggregate principal amount not to exceed $5,000,0007,500,000 at any time outstanding for letters of credit not issued by the Issuing Lenders hereunder;
(m) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, bankers acceptances, letters of credit, surety bonds or other similar obligations arising in the ordinary course of business, and any refinancings refinancing thereof to the extent not provided to secure the repayment of other Indebtedness;
(kn) Indebtedness owed by any Subsidiary that is not a Credit Party related to any other Subsidiary that is not a Credit Party;
(l) (i) Indebtedness owed by any Credit Party to any Subsidiary which is not a Credit Party or by any Subsidiary which is not a Credit Party to a Credit Party, in each case, existing on the Closing Date, (ii) the S1 Intercompany Loans in an aggregate principal amount not to exceed $200,000,000, (iii) the TargetCo Intercompany Loans in an aggregate principal amount not exceed $35,000,000 and (iv) Indebtedness owed by (A) any Credit Party to any Subsidiary which is not a Credit Party; provided that such Indebtedness shall be subordinated to the Obligations in a manner reasonably satisfactory to the Administrative Agent and (B) any Subsidiary which is not a Credit Party to any Credit Partycustomer financings; provided that the aggregate principal amount of all such intercompany Indebtedness permitted pursuant to the foregoing clauses (A) and (B), together with any equity or capital investments permitted all Investments made pursuant to Section 11.3(h)(ii), in each case incurred or made after the Third Amendment Effective Date, shall not exceed, as of the date such Indebtedness is incurred, made or increased, the greater of (A) $75,000,000 and (B) five percent (5%) of Consolidated Total Assets as of such date of determination (provided that in making such determination, such amount shall be calculated as the net balance of such loans, advances and equity or capital investments (as of such date of determination) as reduced by any repayments or distributions made with respect thereto (as of such date of determination)); provided, further, that, any Indebtedness owed to any Credit Party pursuant to this clause (l) shall be evidenced by a promissory note in form and substance reasonably satisfactory to the Administrative Agent and shall be pledged and delivered to the Administrative Agent pursuant to the Security Documents;
(m) senior unsecured Indebtedness; provided, that: (i) the Borrower and its Subsidiaries shall be in pro forma compliance (as of the date of the incurrence of such Indebtedness and after giving effect thereto) with each covenant contained in Article X; (ii) no Default or Event of Default has occurred and is continuing at the time of such incurrence (or would exist after giving effect thereto); (iii) such Indebtedness shall rank no higher than pari passu in right of payment with the Obligations; (iv) such Indebtedness is not subject to any scheduled amortization, mandatory redemption, mandatory repayment or mandatory prepayment, sinking fund or similar payment (other than, in each case, reasonable and customary offers to repurchase upon a change of control or asset sale and acceleration rights after an event of default) or have a final maturity date, in either case prior to the date occurring one (1) year following the latest of the Revolving Credit Maturity Date, the Term Loan Maturity Date or any maturity date of any Incremental Term Loan (in effect as of the date such Indebtedness is incurred) and such Indebtedness shall have a weighted average life to maturity that is no shorter than the weighted average life to maturity of each of the then outstanding Term Loans (provided that any Indebtedness that automatically converts to, or is exchangeable into, notes or other Indebtedness that meet this clause (iv) shall be deemed to satisfy this condition so long as the Borrower irrevocably agrees at the time of the issuance thereof to take all actions necessary to convert or exchange such Indebtedness); (v) the indenture or other applicable agreement governing such Indebtedness (including any related guaranties and any other related documentation10.3(j) shall not include exceed $25,000,00037,500,000 at any financial performance “maintenance” covenants (whether stated as a covenant, default or otherwise, although “incurrence-based” financial tests may be included) or cross-defaults (but may include cross-defaults at the final stated maturity thereof and cross-acceleration); (vi) the terms of such Indebtedness (including, without limitation, all covenants, defaults, guaranties and remedies, but excluding provisions as to interest rate, call protection and redemption premiums), taken as a whole, are no more restrictive or onerous than the terms applicable to the Borrower and its Subsidiaries under this Agreement and the other Loan Documents, (vii) such Indebtedness shall not be recourse to, or guaranteed by, any Person that is not a Credit Party, (viii) prior to the incurrence of such Indebtedness the Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower certifying as to compliance with the requirements of the preceding clauses (i) through (vii) above and containing calculations, in form and substance reasonably satisfactory to the Administrative Agent with respect to clause (i) above and (ix) to the extent such Indebtedness exceeds $350,000,000, the amount of such excess shall be used to prepay the Loans in accordance with Section 4.5(b)(i)time outstanding; and
(no) additional Indebtedness (i) of a Person that becomes a Restricted Subsidiary of the Subsidiaries Company after the ClosingThird Amendment Effective Date in connection with any Permitted Acquisition or (ii) assumed in connection with any assets acquired in connection with any Permitted Acquisition, and the refinancing, refunding, renewal and extension thereof; provided, that such Indebtedness (x) exists at the time such Person becomes a Restricted Subsidiary or such assets are acquired and is not otherwise permitted pursuant to this Section created in an aggregate amount outstanding contemplation of, or in connection with, such Person becoming a Restricted Subsidiary or such assets being acquired and (y) shall not to exceed $75,000,00025,000,00037,500,000 in the aggregate on any date of determination.
Appears in 1 contract
Sources: Credit Agreement (Blackbaud Inc)
Limitations on Indebtedness. CreateDirectly or indirectly create, incur, assume or suffer otherwise become directly or indirectly liable with respect to exist any Indebtedness exceptexcept for the following:
(a) the Obligations (excluding Hedging Obligations permitted Indebtedness incurred by any Loan Party or Escrow Subsidiary pursuant to Section 11.1(b));the Term Loan Facility and Indebtedness incurred by any Loan Party otherwise than pursuant to the Term Loan Facility (including pursuant to any Additional Obligations Documents, any Permitted Debt Exchange or any Rollover Indebtedness but not pursuant to the Loan Documents) in an aggregate principal amount at any time outstanding not to exceed (A) $325,000,000 plus (B) the Maximum Incremental Facilities Amount.
(b) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries incurred in connection with a Hedging pursuant to this Agreement with a counterparty and upon terms and conditions the other Loan Documents (including interest rate) reasonably satisfactory to the Administrative Agent; providedany Incremental Facility, that Extension or any counterparty that is a Lender shall be deemed satisfactory to the Administrative AgentCredit Agreement Refinancing Indebtedness);
(c) Unsecured Indebtedness existing on of the Third Amendment Effective Date and not otherwise permitted under this Section and listed on Schedule 11.1, and the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) thereofParent Borrower or any of its Restricted Subsidiaries;
(d) purchase money Indebtedness (other than Indebtedness permitted by clauses (a) through (c) above) existing on the Closing Date, and Indebtedness incurred in connection disclosed on Schedule 8.13(d), together with Capital Leases in an aggregate amount not any renewal, extension, refinancing or refunding pursuant to exceed $40,000,000 on any date of determinationclause (i) below;
(e) Guaranty Obligations of any Subsidiary in favor Secured Indebtedness of the Administrative Agent for Parent Borrower or any of its Restricted Subsidiaries in an aggregate principal amount at any time outstanding not to exceed the benefit greater of (x) $150,000,000 and (y) 6.25% of Consolidated Total Assets and only so long as the Administrative Agent Liens securing such Indebtedness are incurred under and the Lendersin compliance with Subsection 8.14(p);
(f) Guaranty Guarantee Obligations incurred by:
(i) the Parent Borrower or any of any Subsidiary with its Restricted Subsidiaries in respect to of Indebtedness of a Loan Party that is permitted hereunder; provided that Guarantee Obligations in respect of Indebtedness permitted pursuant to subsections clauses (a), (c) and (m) shall be permitted only to the extent that such Guarantee Obligations are incurred by Guarantors (other than, in the case of clause (m), Guarantee Obligations incurred by any Foreign Subsidiary that is not a Guarantor);
(ii) the Parent Borrower or any of its Restricted Subsidiaries in respect of lease obligations of Non-Loan Parties (to the extent such lease obligations constitute Indebtedness);
(iii) a Non-Loan Party in respect of Indebtedness of another Non-Loan Party that is permitted hereunder;
(iv) the Parent Borrower or any of its Restricted Subsidiaries in respect of Indebtedness of any Person; provided that the aggregate amount at any time outstanding of such Guarantee Obligations incurred pursuant to this clause (iv), when aggregated with the amount of all other Guarantee Obligations incurred and outstanding pursuant to this clause (iv) and all Indebtedness incurred and outstanding pursuant to clause (w) of this Subsection 8.13, shall not exceed the greater of (x) $195,000,000 and (y) 11.50% of Consolidated Total Assets at the time of such Guarantee Obligations being incurred;
(v) the Parent Borrower or any of its Restricted Subsidiaries in connection with sales or other dispositions permitted under Subsection 8.5, including indemnification obligations with respect to leases, and guarantees of collectability in respect of accounts receivable or notes receivable for up to face value;
(vi) the Parent Borrower or any of its Restricted Subsidiaries consisting of accommodation guarantees for the benefit of trade creditors of the Parent Borrower or any of its Restricted Subsidiaries in the ordinary course of business;
(vii) the Parent Borrower or any of its Restricted Subsidiaries in respect of Investments expressly permitted pursuant to clause (c), (j), (l), (m) or (v) of the definition of “Permitted Investments”;
(viii) the Parent Borrower or any of its Restricted Subsidiaries in respect of (x) Management Guarantees and (y) third-party loans and advances to officers or employees of any Parent Entity or the Parent Borrower or any of its Restricted Subsidiaries permitted pursuant to clause (l) or (m) of the definition of “Permitted Investments”;
(ix) the Parent Borrower or any of its Restricted Subsidiaries in respect of Reimbursement Obligations in respect of Letters of Credit or with respect to reimbursement obligations in respect of any other letters of credit permitted under this Agreement;
(x) the Parent Borrower or any of its Restricted Subsidiaries in respect of performance, bid, appeal, surety, judgment, replevin and similar bonds, other suretyship arrangements, other similar obligations and letters of credit, bankers’ acceptances or similar instruments or obligations, all in, or relating to liabilities or obligations incurred in, the ordinary course of business; and
(xi) the Parent Borrower or any of its Restricted Subsidiaries in respect of Indebtedness or other obligations of a Person in connection with a joint venture or similar arrangement in respect of which the aggregate outstanding amount of all such Indebtedness, together with the aggregate outstanding amount of Investments permitted pursuant to clause (q) of the definition of “Permitted Investments”, does not exceed the greater of (x) $20,000,00025,000,000 and (y) 0.85% of Consolidated Total Assets; provided, however, that if any Indebtedness referred to in clauses (i) through (div) above is subordinated in right of this Sectionpayment to the Obligations or is secured by Liens that are senior or subordinate to any Liens securing the Collateral, then any corresponding Guarantee Obligations shall be subordinated and the Liens securing the corresponding Guarantee Obligations shall be senior or subordinate to substantially the same extent;
(g) Purchase Money Obligations, Financing Lease Obligations and other Indebtedness (i) of incurred by the Parent Borrower or a Person that becomes a Restricted Subsidiary of the Parent Borrower after to finance the Closing Date in connection with any Permitted Acquisition acquisition, leasing, construction or (ii) assumed in connection with any assets acquired in connection with any Permitted Acquisitionimprovement of fixed assets; provided, and the refinancinghowever, refunding, renewal and extension (but not the increase in that the aggregate principal amountamount of any such Purchase Money Obligations incurred to finance the acquisition of Capital Stock of any Person at any time outstanding pursuant to this clause (g) thereof; provided, that such Indebtedness shall not exceed an amount equal to the greater of (x) exists at the time such Person becomes a Subsidiary or such assets are acquired and is not created in contemplation of, or in connection with, such Person becoming a Subsidiary or such assets being acquired $68,000,00086,500,000 and (y) shall not exceed $35,000,000 in the aggregate on any date 4.00% of determinationConsolidated Total Assets;
(h) Indebtedness owed by of any Foreign Subsidiary Guarantor in an aggregate principal amount at any time outstanding not exceeding the greater of (x) $32,000,00040,500,000 and (y) an amount equal to another Credit Party(A) the Foreign Borrowing Base plus (B) in the event of any refinancing of any Indebtedness incurred under this clause (y), the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) incurred or payable in connection with such refinancing;
(i) Subordinated Indebtedness; provided that renewals, extensions, refinancings and refundings of Indebtedness (in the case of each issuance of Subordinated Indebtedness, whole or in part) permitted by:
(i) no Default clause (d) or Event of Default shall have occurred and be continuing (g) above or would be caused by this clause (i)(i) provided, however, that (A) any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the issuance principal amount (or accreted value, if applicable) of such Subordinated Indebtedness so renewed, extended, refinanced or refunded (plus accrued interest, any premium and reasonable commission, fees, underwriting discounts and other costs and expenses incurred in connection with such refinanced Indebtedness) and (B) such Indebtedness has a weighted average life to maturity no shorter than the remaining weighted average life to maturity of the Indebtedness so renewed, extended, refinanced or refunded; and
(ii) clause (a) or (m) hereof or this clause (i)(ii); provided, however, that (A) any such renewal, extension, refinancing or refunding is in an aggregate principal amount (or, if issued with original issue discount, the Administrative Agent accreted value) not greater than the principal amount (or accreted value, if applicable) of such Indebtedness so renewed, extended, refinanced or refunded (plus accrued interest, any premium and reasonable commission, fees, underwriting discounts and other costs and expenses, incurred in connection with such refinanced Indebtedness), (B) with respect to Indebtedness originally incurred under clause (a) or (m), such Indebtedness has (x) a Stated Maturity date that is (i) at least 91 days after the Termination Date or (ii) in respect of Indebtedness with a Stated Maturity earlier than 91 days after the Termination Date, not earlier than the Stated Maturity date of the Indebtedness that is renewed, extended, refinanced or refunded and (y) only with respect to Restricted Indebtedness (excluding for this purpose any Restricted Indebtedness the proceeds of which were used to refinance, refund, replace, renew, repay, restructure or extend the Term Loan Facility or any refinancing thereof, that was incurred under any provision of this Subsection 8.13 other than this Subsection 8.13(i)(ii)), a weighted average life to maturity, at the time of issuance or incurrence, of not less than the remaining weighted average life to maturity of the Indebtedness that is renewed, extended, refinanced or refunded (provided that compliance with this restriction shall have received satisfactory written evidence be determined ignoring the effect of any payment of customary upfront fees or any permanent prepayment of such Indebtedness being refinanced, in each case based on market conditions at the time of any such refinancing), (C) if secured by any Collateral, such Indebtedness shall be subject to the terms of the ABL/Term Loan Intercreditor Agreement, the Junior Lien Intercreditor Agreement, or any Other Intercreditor Agreement, (D) to the extent that the Indebtedness to be renewed, extended, refinanced or refunded is unsecured and, at the time of such renewal, extension, refinancing or refunding, such Indebtedness could not be incurred under Subsection 8.13(a)(B) by meeting the Consolidated First Lien Leverage Ratio, then such renewed, extended, refinanced or refunded Indebtedness may not be secured by any Collateral and (E) such renewed, extended, refinanced or refunded Indebtedness shall not include Indebtedness of a Restricted Subsidiary that is not a Loan Party that refinances Indebtedness of a Loan Party that could not have been initially incurred by such Restricted Subsidiary pursuant to this Subsection 8.13;
(j) Indebtedness of the Parent Borrower or any Restricted Subsidiary to Holdings or the Parent Borrower or any of its Subsidiaries to the extent the Investment in such Indebtedness is not restricted by Subsection 8.12;
(k) Indebtedness incurred under any agreement pursuant to which a Person provides cash management services or similar financial accommodations to the Parent Borrower or any of its Restricted Subsidiaries (including any Cash Management Arrangements);
(l) Indebtedness constituting indemnities and adjustments (including pension plan adjustments and contingent payments adjustments) under the Investment Agreement;
(m) Indebtedness incurred or assumed in connection with, or as a result of, a Permitted Acquisition so long as: (i) the Parent Borrower would be in compliance with all covenants contained in this Agreement compliance, on a Pro Forma Basis after giving effect to the issuance consummation of such acquisition and the incurrence or assumption of such Indebtedness, with Subsection 8.1 recomputed as of the last day of the most recently ended Fiscal Quarter of the Parent Borrower for which financial statements are available, whether or not compliance with Subsection 8.1 is otherwise required at such time (it being understood that, as a condition precedent to the effectiveness of any such Subordinated incurrence or assumption, the Borrower Representative shall deliver to the Administrative Agent a certificate of a Responsible Officer setting forth in reasonable detail the calculations demonstrating such compliance), (ii) before and after giving effect thereto, no Specified Default or Event of Default known to the Borrower Representative has occurred and is continuing, and (iii) with respect to any newly incurred Indebtedness, such Indebtedness does not have any maturity or amortization rate greater than 1.0% per annum prior to the date that is 91 days after the Termination Date (other than (x) mandatory prepayments with proceeds of and exchanges for refinancing Indebtedness in respect thereof permitted hereunder or (y) an earlier maturity date and/or higher amortization rate for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or an amortization rate greater than 1.0% per annum prior to the date that is 91 days after the Termination Date and other mandatory prepayments with proceeds of and exchanges for refinancing Indebtedness in respect thereof permitted hereunder) and does not provide for redemption or repayment requirements from asset sales, casualty or condemnation events or excess cash flow on terms more favorable than those under the Term Loan Credit Agreement (other than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other indebtedness permitted hereunder which meets the requirements of this Subsection 8.13(m)); it being understood that, in the event that any such Indebtedness incurred under this Subsection 8.13(m) is incurred in good faith to finance the purchase price of any such acquisition in advance of the closing of such acquisition, and such closing shall thereafter not occur and such Indebtedness (or an equal principal amount of other Indebtedness) is redeemed, repaid or otherwise retired promptly after the Borrower Representative determines that such transaction has been abandoned, such Indebtedness shall be deemed to comply with this Subsection 8.13(m);
(jn) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, bankers acceptances, letters the Parent Borrower or any of credit, surety bonds or other similar obligations arising its Restricted Subsidiaries incurred to finance insurance premiums in the ordinary course of business;
(o) Indebtedness (A) arising from the honoring of a check, draft or similar instrument against insufficient funds in the ordinary course of business; or (B) consisting of indemnities, obligations in respect of earnouts or other purchase price adjustments, or similar obligations, created, incurred or assumed in connection with the acquisition or disposition of any business, assets or Person;
(p) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries in respect of Financing Leases which have been funded solely by Investments of the Parent Borrower and its Restricted Subsidiaries permitted under clause (r) of the definition of “Permitted Investments”;
(q) Indebtedness of the Parent Borrower or any refinancings thereof of its Restricted Subsidiaries arising in connection with industrial development or revenue bonds or similar obligations secured by property or assets leased to and operated by the Parent Borrower or such Restricted Subsidiary that were issued in connection with the financing or refinancing of such property or assets, provided, that the aggregate principal amount of such Indebtedness outstanding at any time shall not exceed the greater of (x) $12,000,00015,250,000 and (y) 0.50% of Consolidated Total Assets;
(r) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries in respect of obligations evidenced by bonds, debentures, notes or similar instruments issued as payment-in-kind interest payments in respect of Indebtedness otherwise permitted hereunder;
(s) accretion of the principal amount of Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries otherwise permitted hereunder issued at any original issue discount;
(t) Indebtedness of the Parent Borrower and its Restricted Subsidiaries under Hedging Agreements and other Permitted Hedging Arrangements;
(u) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries in respect of any Sale and Leaseback Transaction;
(v) Indebtedness in respect of any letters of credit issued in favor of any Issuing Lender or the Swingline Lender to support any Defaulting Lender’s participation in Letters of Credit or Swingline Loans as provided for in Subsection 3.4, in each case to the extent not provided to secure exceeding the repayment maximum amount of other Indebtednesssuch participations;
(kw) other Indebtedness owed by of the Parent Borrower or any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(l) (i) Indebtedness owed by any Credit Party to any Subsidiary which is not a Credit Party or by any Subsidiary which is not a Credit Party to a Credit Party, in each case, existing on the Closing Date, (ii) the S1 Intercompany Loans in an aggregate principal amount not to exceed $200,000,000, (iii) the TargetCo Intercompany Loans in an aggregate principal amount not exceed $35,000,000 and (iv) Indebtedness owed by (A) any Credit Party to any Subsidiary which is not a Credit Party; provided that such Indebtedness shall be subordinated to the Obligations in a manner reasonably satisfactory to the Administrative Agent and (B) any Subsidiary which is not a Credit Party to any Credit Partyof its Restricted Subsidiaries; provided that the aggregate amount outstanding at any time of all such intercompany Indebtedness permitted pursuant to the foregoing clauses (A) and (B), together with any equity or capital investments permitted pursuant to Section 11.3(h)(ii), in each case incurred or made after the Third Amendment Effective Date, shall not exceed, as of the date such Indebtedness is incurred, made or increased, the greater of (A) $75,000,000 and (B) five percent (5%) of Consolidated Total Assets as of such date of determination (provided that in making such determination, such amount shall be calculated as the net balance of such loans, advances and equity or capital investments (as of such date of determination) as reduced by any repayments or distributions made with respect thereto (as of such date of determination)); provided, further, that, any Indebtedness owed to any Credit Party assumed pursuant to this clause (l) shall be evidenced by a promissory note in form and substance reasonably satisfactory to the Administrative Agent and shall be pledged and delivered to the Administrative Agent pursuant to the Security Documents;
(m) senior unsecured Indebtedness; provided, that: (i) the Borrower and its Subsidiaries shall be in pro forma compliance (as of the date of the incurrence of such Indebtedness and after giving effect thereto) with each covenant contained in Article X; (ii) no Default or Event of Default has occurred and is continuing at the time of such incurrence (or would exist after giving effect thereto); (iii) such Indebtedness shall rank no higher than pari passu in right of payment with the Obligations; (iv) such Indebtedness is not subject to any scheduled amortization, mandatory redemption, mandatory repayment or mandatory prepayment, sinking fund or similar payment (other than, in each case, reasonable and customary offers to repurchase upon a change of control or asset sale and acceleration rights after an event of default) or have a final maturity date, in either case prior to the date occurring one (1) year following the latest of the Revolving Credit Maturity Date, the Term Loan Maturity Date or any maturity date of any Incremental Term Loan (in effect as of the date such Indebtedness is incurred) and such Indebtedness shall have a weighted average life to maturity that is no shorter than the weighted average life to maturity of each of the then outstanding Term Loans (provided that any Indebtedness that automatically converts to, or is exchangeable into, notes or other Indebtedness that meet this clause (iv) shall be deemed to satisfy this condition so long as the Borrower irrevocably agrees at the time of the issuance thereof to take all actions necessary to convert or exchange such Indebtedness); (v) the indenture or other applicable agreement governing such Indebtedness (including any related guaranties and any other related documentation) shall not include any financial performance “maintenance” covenants (whether stated as a covenant, default or otherwise, although “incurrence-based” financial tests may be included) or cross-defaults (but may include cross-defaults at the final stated maturity thereof and cross-acceleration); (vi) the terms of such Indebtedness (including, without limitation, all covenants, defaults, guaranties and remedies, but excluding provisions as to interest rate, call protection and redemption premiumsw), taken as a whole, are no more restrictive or onerous than the terms applicable to the Borrower and its Subsidiaries under this Agreement and the when aggregated with all other Loan Documents, (vii) such Indebtedness shall not be recourse to, or guaranteed by, any Person that is not a Credit Party, (viii) prior to the incurrence of such Indebtedness the Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower certifying as to compliance with the requirements of the preceding clauses (i) through (vii) above and containing calculations, in form and substance reasonably satisfactory to the Administrative Agent with respect to clause (i) above and (ix) to the extent such Indebtedness exceeds $350,000,000, the amount of such excess shall be used to prepay the Loans in accordance with Section 4.5(b)(i); and
(n) additional Indebtedness of the Subsidiaries not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed $75,000,000.Indebted
Appears in 1 contract
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) the Obligations (excluding Hedging Obligations permitted pursuant to Section 11.1(b))Obligations;
(b) Indebtedness incurred and obligations owing under Hedge Agreements entered into in connection with a Hedging Agreement with a counterparty and upon terms and conditions (including order to manage existing or anticipated interest rate) reasonably satisfactory to the Administrative Agent; provided, that any counterparty that is a Lender shall be deemed satisfactory to the Administrative Agentexchange rate or commodity price risks and not for speculative purposes;
(c) Indebtedness existing on the Third Amendment Effective Closing Date and not otherwise permitted under this Section and listed on Schedule 11.1, and the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) thereof7.21;
(d) purchase money Indebtedness and Indebtedness incurred in connection with Capital Leases and purchase money Indebtedness in an aggregate amount not to exceed $40,000,000 on 30,000,000 at any date of determinationtime outstanding;
(e) Guaranty Obligations Indebtedness of a Person existing at the time such Person became a Subsidiary or assets were acquired from such Person in connection with an Investment permitted pursuant to Section 11.3, to the extent that (i) such Indebtedness was not incurred in connection with, or in contemplation of, such Person becoming a Subsidiary or the acquisition of such assets, (ii) neither the Borrower nor any Subsidiary in favor thereof (other than such Person or any other Person that such Person merges with or that acquires the assets of such Person) shall have any liability or other obligation with respect to such Indebtedness and (iii) the Administrative Agent for the benefit aggregate outstanding principal amount of the Administrative Agent and the Lenderssuch Indebtedness does not exceed $20,000,000 at any time outstanding;
(f) Guaranty Obligations of any Subsidiary with respect to Indebtedness permitted pursuant to subsections (a) through (de) of this Section;
(g) unsecured intercompany Indebtedness (i) of a Person that becomes a Subsidiary of the Borrower after the Closing Date in connection with any Permitted Acquisition or (ii) assumed in connection with any assets acquired in connection with any Permitted Acquisition, and the refinancing, refunding, renewal and extension (but not the increase in the aggregate principal amount) thereof; provided, that such Indebtedness (x) exists at the time such Person becomes a Subsidiary or such assets are acquired and is not created in contemplation of, or in connection with, such Person becoming a Subsidiary or such assets being acquired and (y) shall not exceed $35,000,000 in the aggregate on any date of determination;
(h) Indebtedness owed by any Subsidiary Guarantor to another Credit Party;
(i) Subordinated Indebtedness; provided that in the case of each issuance of Subordinated Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Subordinated Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a Pro Forma Basis after giving effect to the issuance of any such Subordinated Indebtedness;
(j) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, bankers acceptances, letters of credit, surety bonds or other similar obligations arising in the ordinary course of business, and any refinancings thereof to the extent not provided to secure the repayment of other Indebtedness;
(k) Indebtedness owed by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(l) (i) Indebtedness owed by any Credit Party to any Subsidiary which is not a Credit Party or by any Subsidiary which is not a Credit Party to a another Credit Party, in each case, existing on the Closing Date, (ii) the S1 Intercompany Loans owed by any Non-Guarantor Subsidiary to any Credit Party in an aggregate principal amount not to exceed $200,000,000, 20,000,000 at any time outstanding (iii) the TargetCo Intercompany Loans in an aggregate principal amount not exceed $35,000,000 and (iv) provided that any Indebtedness owed by (A) any Credit Party to any such Non-Guarantor Subsidiary which is not a Credit Party; provided that such Indebtedness shall be subordinated to the Obligations in a manner reasonably satisfactory to the Administrative Agent and (B) any Subsidiary which is not a Credit Party to any Credit Party; provided that the aggregate amount of all such intercompany Indebtedness permitted pursuant to the foregoing clauses (A) and (B), together with any equity or capital investments permitted pursuant to Section 11.3(h)(ii), in each case incurred or made after the Third Amendment Effective Date, shall not exceed, as of the date such Indebtedness is incurred, made or increased, the greater of (A) $75,000,000 and (B) five percent (5%) of Consolidated Total Assets as of such date of determination (provided that in making such determination, such amount shall be calculated as the net balance of such loans, advances and equity or capital investments (as of such date of determination) as reduced by any repayments or distributions made with respect thereto (as of such date of determination)); provided, further, that, any Indebtedness owed to any Credit Party pursuant to this clause (lii) shall be evidenced by a promissory demand note in form and substance reasonably satisfactory to the Administrative Agent and shall be pledged and delivered to the Administrative Agent pursuant to the Security Documents), (iii) owed by any Credit Party to any Non-Guarantor Subsidiary (provided, that such Indebtedness shall be subordinated to the Obligations in a manner reasonably satisfactory to the Administrative Agent) and (iv) owed by any Non-Guarantor Subsidiary to any other Non-Guarantor Subsidiary;
(mh) senior Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or other similar instrument drawn against insufficient funds in the ordinary course of business;
(i) Indebtedness under performance bonds, surety bonds, release, appeal and similar bonds, statutory obligations or with respect to workers’ compensation claims, in each case incurred in the ordinary course of business, and reimbursement obligations in respect of any of the foregoing;
(j) other unsecured Indebtedness; providedprovided that, that: (i) after giving effect to the incurrence thereof, the Borrower and its Subsidiaries shall be in pro forma compliance with Section 10.1 (as it being understood, for the avoidance of doubt, that the financial covenant set forth in Section 10.1 shall be calculated on a Pro Forma Basis) and (ii) any such Indebtedness individually in excess of $100,000,000 shall have a final maturity date after the date that is six months after the Term Loan Maturity Date; provided, however, that the aggregate principal amount of such unsecured Indebtedness which is incurred by Subsidiaries which are not Subsidiary Guarantors shall at no time exceed $10,000,000; and
(i) the Specified Indebtedness and (ii) any refinancing or replacement of the date Specified Indebtedness (or any further refinancing or replacement of such refinancing or replacement of the incurrence of such Indebtedness and after giving effect thereto) with each covenant contained Specified Indebtedness), so long as, in Article X; any case under this clause (ii) (each being referred to herein as a “Specified Indebtedness Refinancing”), (A) no Default or Event of Default has occurred and is continuing at the time of such incurrence (or would exist result therefrom, (B) after giving effect theretoto the incurrence thereof, the Borrower shall be in pro forma compliance with Section 10.1 (it being understood, for the avoidance of doubt, that the financial covenant set forth in Section 10.1 shall be calculated on a Pro Forma Basis); , (iiiC) the principal amount (or accreted value, if applicable) of such refinancing or replacement Indebtedness shall not exceed the principal amount (or accreted value, if applicable) of the Specified Indebtedness except by an amount equal to unpaid accrued interest and premium thereon plus other reasonable amounts paid (including original issue discount), and fees and expenses reasonably incurred, in connection therewith and (D) such refinancing or replacement Indebtedness shall rank no higher than pari passu in right of payment with the Obligations; (iv) such Indebtedness is not subject to any scheduled amortization, mandatory redemption, mandatory repayment or mandatory prepayment, sinking fund or similar payment (other than, in each case, reasonable and customary offers to repurchase upon a change of control or asset sale and acceleration rights after an event of default) or have a final maturity date, in either case prior to no earlier than 120 days after the date occurring one (1) year following the latest later of the Revolving Credit Maturity Date, Date and the Term Loan Maturity Date or any maturity date of any Incremental Term Loan (in effect as of the date such Indebtedness is incurred) and such Indebtedness shall have a weighted average life to maturity that is no shorter than the weighted average life to maturity of each of the then outstanding Term Loans (provided that any Indebtedness that automatically converts to, or is exchangeable into, notes or other Indebtedness that meet this clause (iv) shall be deemed to satisfy this condition so long as the Borrower irrevocably agrees at the time of the issuance thereof to take all actions necessary to convert or exchange such Indebtedness); (v) the indenture or other applicable agreement governing such Indebtedness (including any related guaranties and any other related documentation) shall not include any financial performance “maintenance” covenants (whether stated as a covenant, default or otherwise, although “incurrence-based” financial tests may be included) or cross-defaults (but may include cross-defaults at the final stated maturity thereof and cross-acceleration); (vi) the terms of such Indebtedness (including, without limitation, all covenants, defaults, guaranties and remedies, but excluding provisions as to interest rate, call protection and redemption premiums), taken as a whole, are no more restrictive or onerous than the terms applicable to the Borrower and its Subsidiaries under this Agreement and the other Loan Documents, (vii) such Indebtedness shall not be recourse to, or guaranteed by, any Person that is not a Credit Party, (viii) prior to the incurrence of such Indebtedness the Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower certifying as to compliance with the requirements of the preceding clauses (i) through (vii) above and containing calculations, in form and substance reasonably satisfactory to the Administrative Agent with respect to clause (i) above and (ix) to the extent such Indebtedness exceeds $350,000,000, the amount of such excess shall be used to prepay the Loans in accordance with Section 4.5(b)(i); and
(n) additional Indebtedness of the Subsidiaries not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed $75,000,000Date.
Appears in 1 contract
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) the Obligations (excluding Hedging including the Guaranty Obligations permitted pursuant to Section 11.1(bwith respect thereto));; 43360385_8
(b) unsecured intercompany Indebtedness incurred in connection with a Hedging Agreement with a counterparty and upon terms and conditions owed by:
(including interest ratei) reasonably satisfactory any Credit Party to the Administrative Agent; provided, that any counterparty that is a Lender shall be deemed satisfactory to the Administrative Agentother Credit Party;
(cii) Indebtedness any Credit Party to any Subsidiary that is not a Credit Party;
(iii) any Subsidiary that is not a Credit Party to any Credit Party:
(A) existing on the Third Amendment Effective Closing Date and not otherwise permitted under this Section and listed (as set forth on Schedule 11.1, and the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) thereof;11.1(b)(iii)); and
(dB) purchase money Indebtedness and Indebtedness incurred in connection with Capital Leases in an aggregate amount not to exceed $40,000,000 on any date of determination;
(e) Guaranty Obligations of any Subsidiary in favor of the Administrative Agent for the benefit of the Administrative Agent and the Lenders;
(f) Guaranty Obligations of any Subsidiary with respect to Indebtedness permitted pursuant to subsections (a) through (d) of this Section;
(g) Indebtedness (i) of a Person that becomes a Subsidiary of the Borrower after the Closing Date in connection with an aggregate principal amount not to exceed at any Permitted Acquisition or time outstanding (ii1) assumed in connection with any assets acquired in connection with any Permitted Acquisition, and $50,000,000 less (2) the refinancing, refunding, renewal and extension amount of Guaranty Obligations incurred pursuant to Section 11.1(i) on the applicable date of determination less (but not 3) the increase amount of Investments made in the aggregate principal amountform of Permitted Acquisitions pursuant to Section 11.3(e)(ii) thereof; provided, that such Indebtedness during the term of this Agreement on the applicable date of determination less (x4) exists at the time such Person becomes a Subsidiary or such assets are acquired and is not created in contemplation of, or in connection with, such Person becoming a Subsidiary or such assets being acquired and (yamount of Investments made pursuant to Section 11.3(g) shall not exceed $35,000,000 in during the aggregate term of this Agreement on any the applicable date of determination;; and
(hiv) Indebtedness owed by any Subsidiary Guarantor to another Credit Party;
(i) Subordinated Indebtedness; provided that in the case of each issuance of Subordinated Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Subordinated Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a Pro Forma Basis after giving effect to the issuance of any such Subordinated Indebtedness;
(j) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, bankers acceptances, letters of credit, surety bonds or other similar obligations arising in the ordinary course of business, and any refinancings thereof to the extent not provided to secure the repayment of other Indebtedness;
(k) Indebtedness owed by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(lc) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or other similar instrument drawn against insufficient funds in the ordinary course of business;
(d) Indebtedness of a Person existing at the time such Person became a Subsidiary or assets were acquired from such Person, to the extent that (i) such Indebtedness was not incurred in connection with, or in contemplation of, such Person becoming a Subsidiary or the acquisition of such assets, (ii) neither the Borrower nor any of its Subsidiaries (other than such Person or any other Person that such Person merges with or that acquires the assets of such Person) shall have any liability or other obligation with respect to such Indebtedness and (iii) the aggregate amount of such Indebtedness does not exceed $10,000,000 at any time outstanding;
(e) Indebtedness incurred in connection with Capital Leases and purchase money Indebtedness in an aggregate amount not to exceed $25,000,000 at any time outstanding;
(f) Indebtedness and obligations owing under Hedge Agreements entered into in order to manage existing or anticipated interest rate, exchange rate or commodity price risks and not for speculative purposes;
(g) Guaranty Obligations of the Borrower or any of its Subsidiaries with respect to Indebtedness permitted pursuant to subsections (a), (e) and (f) of this Section 11.1;
(i) Indebtedness owed of the Borrower or any of its Subsidiaries incurred in connection with Facility Capital Expenditures made on its own behalf in an aggregate amount not to exceed 43360385_8 $50,000,000 at any time outstanding and (ii) to the extent that such Indebtedness is incurred by a Credit Party, Guaranty Obligations of any other Credit Party with respect to such Indebtedness (it being agreed and acknowledged by all parties hereto that, except to the extent permitted under subsection (i) below, to the extent that such Indebtedness is incurred by a Subsidiary that is not a Credit Party, no Credit Party shall be permitted to guaranty such Indebtedness);
(i) Guaranty Obligations of any Credit Party with respect to Indebtedness of any Subsidiary which that is not a Credit Party in an aggregate amount not to exceed at any time outstanding (A) $50,000,000 less (B) the amount of Investments made in the form of Permitted Acquisitions pursuant to Section 11.3(e)(ii) during the term of this Agreement on the applicable date of determination less (C) the amount of Investments made in the form of Indebtedness pursuant to Section 11.3(f)(iv) during the term of this Agreement on the applicable date of determination less (D) the amount of Investments made pursuant to Section 11.3(g) during the term of this Agreement on the applicable date of determination;
(j) Indebtedness arising from agreements providing for indemnification, adjustment of purchase price or by similar obligations (including, without limitation, in respect of the ▇▇▇▇▇▇ Acquisition), in connection with acquisitions or dispositions, otherwise permitted hereunder, of any Subsidiary which is not a Credit Party to assets of a Credit Party, in each case, existing on the Closing Date, ; and
(iik) the S1 Intercompany Loans additional Indebtedness not otherwise permitted pursuant to this Section 11.1 in an aggregate principal amount not to exceed $200,000,000, (iii) the TargetCo Intercompany Loans in an aggregate principal amount not exceed $35,000,000 and (iv) Indebtedness owed by (A) 5,000,000 at any Credit Party to any Subsidiary which is not a Credit Party; provided that such Indebtedness shall be subordinated to the Obligations in a manner reasonably satisfactory to the Administrative Agent and (B) any Subsidiary which is not a Credit Party to any Credit Party; provided that the aggregate amount of all such intercompany Indebtedness permitted pursuant to the foregoing clauses (A) and (B), together with any equity or capital investments permitted pursuant to Section 11.3(h)(ii), in each case incurred or made after the Third Amendment Effective Date, shall not exceed, as of the date such Indebtedness is incurred, made or increased, the greater of (A) $75,000,000 and (B) five percent (5%) of Consolidated Total Assets as of such date of determination (provided that in making such determination, such amount shall be calculated as the net balance of such loans, advances and equity or capital investments (as of such date of determination) as reduced by any repayments or distributions made with respect thereto (as of such date of determination)); provided, further, that, any Indebtedness owed to any Credit Party pursuant to this clause (l) shall be evidenced by a promissory note in form and substance reasonably satisfactory to the Administrative Agent and shall be pledged and delivered to the Administrative Agent pursuant to the Security Documents;
(m) senior unsecured Indebtedness; provided, that: (i) the Borrower and its Subsidiaries shall be in pro forma compliance (as of the date of the incurrence of such Indebtedness and after giving effect thereto) with each covenant contained in Article X; (ii) no Default or Event of Default has occurred and is continuing at the time of such incurrence (or would exist after giving effect thereto); (iii) such Indebtedness shall rank no higher than pari passu in right of payment with the Obligations; (iv) such Indebtedness is not subject to any scheduled amortization, mandatory redemption, mandatory repayment or mandatory prepayment, sinking fund or similar payment (other than, in each case, reasonable and customary offers to repurchase upon a change of control or asset sale and acceleration rights after an event of default) or have a final maturity date, in either case prior to the date occurring one (1) year following the latest of the Revolving Credit Maturity Date, the Term Loan Maturity Date or any maturity date of any Incremental Term Loan (in effect as of the date such Indebtedness is incurred) and such Indebtedness shall have a weighted average life to maturity that is no shorter than the weighted average life to maturity of each of the then outstanding Term Loans (provided that any Indebtedness that automatically converts to, or is exchangeable into, notes or other Indebtedness that meet this clause (iv) shall be deemed to satisfy this condition so long as the Borrower irrevocably agrees at the time of the issuance thereof to take all actions necessary to convert or exchange such Indebtedness); (v) the indenture or other applicable agreement governing such Indebtedness (including any related guaranties and any other related documentation) shall not include any financial performance “maintenance” covenants (whether stated as a covenant, default or otherwise, although “incurrence-based” financial tests may be included) or cross-defaults (but may include cross-defaults at the final stated maturity thereof and cross-acceleration); (vi) the terms of such Indebtedness (including, without limitation, all covenants, defaults, guaranties and remedies, but excluding provisions as to interest rate, call protection and redemption premiums), taken as a whole, are no more restrictive or onerous than the terms applicable to the Borrower and its Subsidiaries under this Agreement and the other Loan Documents, (vii) such Indebtedness shall not be recourse to, or guaranteed by, any Person that is not a Credit Party, (viii) prior to the incurrence of such Indebtedness the Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower certifying as to compliance with the requirements of the preceding clauses (i) through (vii) above and containing calculations, in form and substance reasonably satisfactory to the Administrative Agent with respect to clause (i) above and (ix) to the extent such Indebtedness exceeds $350,000,000, the amount of such excess shall be used to prepay the Loans in accordance with Section 4.5(b)(i); and
(n) additional Indebtedness of the Subsidiaries not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed $75,000,000outstanding.
Appears in 1 contract
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) the Obligations (excluding Hedging Obligations permitted pursuant to Section 11.1(b)under Swap Contracts);
(b) Indebtedness incurred in connection with a Hedging Agreement with a counterparty Swap Contract, in each case, incurred in the ordinary course of business and upon terms and conditions (including interest rate) reasonably satisfactory to the Administrative Agent; provided, that any counterparty that is a Lender shall be deemed satisfactory to the Administrative Agentnot for speculative purposes;
(c) Indebtedness existing on the Third Amendment Effective Date and not otherwise permitted under this Section and listed Closing Date, as set forth on Schedule 11.17.01, and the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) thereof;
(d) purchase money Indebtedness of the Borrower and Indebtedness its Subsidiaries incurred in connection with Capital Leases in an aggregate amount not to exceed the greater of (i) four and one-half percent (4.5%) of Consolidated Total Assets (determined at the time of incurrence thereof based on the financial data for the most recently ended Fiscal Year for which audited financial statements of the Borrower and its Subsidiaries are available), and (ii) $40,000,000 on any date of determination30,000,000;
(e) Guaranty Obligations purchase money Indebtedness of any Subsidiary the Borrower and its Subsidiaries in an aggregate amount not to exceed the greater of (i) four and one-half percent (4.5%) of Consolidated Total Assets (determined at the time of incurrence thereof based on the financial data for the most recently ended Fiscal Year for which audited financial statements of the Borrower and its Subsidiaries are available), and (ii) $30,000,000;
(f) Guarantees in favor of the Administrative Agent Lender for the benefit of the Administrative Agent Lender (and the Lendersits Affiliates, as applicable);
(fg) Guaranty Obligations of any Subsidiary Guarantees with respect to Indebtedness permitted pursuant to subsections (ab) through (de) or subsections (k), (p) and (q) of this Section;
(g) Indebtedness (i) of a Person that becomes a Subsidiary of the Borrower after the Closing Date in connection with any Permitted Acquisition or (ii) assumed in connection with any assets acquired in connection with any Permitted Acquisition, and the refinancing, refunding, renewal and extension (but not the increase in the aggregate principal amount) thereof; provided, that such Indebtedness (x) exists at the time such Person becomes a Subsidiary or such assets are acquired and is not created in contemplation of, or in connection with, such Person becoming a Subsidiary or such assets being acquired and (y) shall not exceed $35,000,000 in the aggregate on any date of determination;
(h) Indebtedness owed (i) by the Borrower to any Guarantor, (ii) by any Guarantor to the Borrower, (iii) by any Guarantor to any other Guarantor, or (iv) by any Subsidiary that is not a Guarantor to another Credit Partyany other Subsidiary that is not a Guarantor;
(i) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, Indebtedness owed by the Borrower and any Guarantor to any Foreign Subsidiary or Indebtedness owed by any Foreign Subsidiary to the Borrower and any Guarantor which, together with the Permitted Acquisition Consideration payable in connection with all Permitted Foreign Acquisitions and the total amount of any transactions permitted under Sections 7.03(i) and 7.05(f), does not exceed $100,000,000 in the aggregate during the period from the Closing Date through and including the Maturity Date;
(j) Subordinated Indebtedness; provided that in the case of each issuance of Subordinated Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Subordinated Indebtedness and (ii) the Administrative Agent Lender shall have received satisfactory written evidence that the Borrower and its Subsidiaries would be in compliance with all covenants contained in this Agreement on a Pro Forma Basis pro forma basis after giving effect to the issuance of any such Subordinated Indebtedness;
(j) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, bankers acceptances, letters of credit, surety bonds or other similar obligations arising in the ordinary course of business, and any refinancings thereof to the extent not provided to secure the repayment of other Indebtedness;
(k) Indebtedness owed by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(l) (i) Indebtedness owed by any Credit Party to any Subsidiary which is not a Credit Party or by any Subsidiary which is not a Credit Party to a Credit Party, in each case, existing on the Closing Date, (ii) the S1 Intercompany Loans in an aggregate principal amount not to exceed $200,000,000, (iii) the TargetCo Intercompany Loans in an aggregate principal amount not exceed $35,000,000 and (iv) Indebtedness owed by (A) any Credit Party to any Subsidiary which is not a Credit Party; provided that such Indebtedness shall be subordinated to the Obligations in a manner reasonably satisfactory to the Administrative Agent and (B) any Subsidiary which is not a Credit Party to any Credit Party; provided that the aggregate amount of all such intercompany Indebtedness permitted pursuant to the foregoing clauses (A) and (B), together with any equity or capital investments permitted pursuant to Section 11.3(h)(ii), in each case incurred or made after the Third Amendment Effective Date, shall not exceed, as of the date such Indebtedness is incurred, made or increased, the greater of (A) $75,000,000 and (B) five percent (5%) of Consolidated Total Assets as of such date of determination (provided that in making such determination, such amount shall be calculated as the net balance of such loans, advances and equity or capital investments (as of such date of determination) as reduced by any repayments or distributions made with respect thereto (as of such date of determination)); provided, further, that, any Indebtedness owed to any Credit Party pursuant to this clause (l) shall be evidenced by a promissory note in form and substance reasonably satisfactory to the Administrative Agent and shall be pledged and delivered to the Administrative Agent pursuant to the Security Documents;
(m) senior unsecured Indebtedness; provided, that: (i) the Borrower and its Subsidiaries shall be in pro forma compliance (as of the date of the incurrence of such Indebtedness and after giving effect thereto) with each covenant contained in Article X; (ii) no Default or Event of Default has occurred and is continuing at the time of such incurrence (or would exist after giving effect thereto); (iii) such Indebtedness shall rank no higher than pari passu in right of payment with the Obligations; (iv) such Indebtedness is not subject to any scheduled amortization, mandatory redemption, mandatory repayment or mandatory prepayment, sinking fund or similar payment (other than, in each case, reasonable and customary offers to repurchase upon a change of control or asset sale and acceleration rights after an event of default) or have a final maturity date, in either case prior to the date occurring one (1) year following the latest of the Revolving Credit Maturity Date, the Term Loan Maturity Date or any maturity date of any Incremental Term Loan (in effect as of the date such Indebtedness is incurred) and such Indebtedness shall have a weighted average life to maturity that is no shorter than the weighted average life to maturity of each of the then outstanding Term Loans (provided that any Indebtedness that automatically converts to, or is exchangeable into, notes or other Indebtedness that meet this clause (iv) shall be deemed to satisfy this condition so long as the Borrower irrevocably agrees at the time of the issuance thereof to take all actions necessary to convert or exchange such Indebtedness); (v) the indenture or other applicable agreement governing such Indebtedness (including any related guaranties and any other related documentation) shall not include any financial performance “maintenance” covenants (whether stated as a covenant, default or otherwise, although “incurrence-based” financial tests may be included) or cross-defaults (but may include cross-defaults at the final stated maturity thereof and cross-acceleration); (vi) the terms of such Indebtedness (including, without limitation, all covenants, defaults, guaranties and remedies, but excluding provisions as to interest rate, call protection and redemption premiums), taken as a whole, are no more restrictive or onerous than the terms applicable to the Borrower and its Subsidiaries under this Agreement and the other Loan Documents, (vii) such Indebtedness shall not be recourse to, or guaranteed by, any Person that is not a Credit Party, (viii) prior to the incurrence of such Indebtedness the Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower certifying as to compliance with the requirements of the preceding clauses (i) through (vii) above and containing calculations, in form and substance reasonably satisfactory to the Administrative Agent with respect to clause (i) above and (ix) to the extent such Indebtedness exceeds $350,000,000, the amount of such excess shall be used to prepay the Loans in accordance with Section 4.5(b)(i); and
(n) additional Indebtedness of the Borrower and its Subsidiaries not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed five percent (5%) of Consolidated Total Assets (determined at the time of incurrence thereof based on the financial data for the most recently ended Fiscal Year for which audited financial statements of the Borrower and its Subsidiaries are available);
(l) so long as no Default or Event of Default has occurred and is continuing or would occur as a result therefrom, Indebtedness arising in connection with an Accounts Securitization;
(m) endorsements of negotiable instruments for deposit or collection in the ordinary course of business;
(n) unsecured Indebtedness 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 extent incurred in the ordinary course of business;
(o) [Intentionally Omitted];
(p) Indebtedness of the Borrower and its Subsidiaries in respect of the Revolving Credit Agreement in a maximum amount not to exceed $75,000,0001,000,000,000; provided that such Indebtedness (i) shall not be guaranteed by any Person that has not also guaranteed all of the Obligations, provided that this clause (i) shall not prohibit the Euro Subsidiary from guaranteeing the obligations of the Canadian Subsidiary under the Revolving Credit Agreement, (ii) shall not rank higher than pari passu with the Obligations, (iii) shall not have restrictions, limitations or encumbrances on the ability of the Borrower or any its Subsidiaries to incur Liens to secure the Obligations (other than customary equal and ratable provisions that would permit the Obligations to be secured on at least a pari passu basis with such Indebtedness); and
(q) Indebtedness consisting of Qualified Unsecured Issuances and any refinancings, refundings, renewals or extensions thereof; provided that (i) such refinancing shall be on terms and conditions, satisfactory to the Lender, that are (A) consistent with the then-current market terms and conditions of such type of unsecured debt (as reasonably determined in good faith by the board of directors of the Borrower) and (B) no less favorable to the Lender than the terms of the Qualified Unsecured Issuances, (ii) no Default or Event of Default shall have occurred and be continuing or would be caused by such refinancing, refunding, renewal or extension thereof, (iii) the principal amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing, (iv) the final maturity date and weighted average life of such refinancing, refunding, renewal or extension shall not be prior to or shorter than that applicable to the Indebtedness prior to such refinancing, refunding, renewal or extension and (v) such refinancing, refunding, renewal or extension shall (A) be unsecured, (B) not rank higher than pari passu with the Obligations and (C) not be guaranteed by any Person that has not also guaranteed all of the Obligations. provided, that no agreement or instrument with respect to Indebtedness permitted to be incurred by this Section shall restrict, limit or otherwise encumber (by covenant or otherwise) the ability of any Subsidiary of the Borrower to make any payment to the Borrower or any of its Subsidiaries (in the form of dividends, intercompany advances or otherwise) for the purpose of enabling the Borrower to pay the Obligations.
Appears in 1 contract
Sources: Credit Agreement (Pool Corp)
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) the Obligations (excluding Hedging including the Guaranty Obligations permitted pursuant to Section 11.1(b)with respect thereto);
(b) unsecured intercompany Indebtedness incurred in connection with a Hedging Agreement with a counterparty and upon terms and conditions owed by:
(including interest ratei) reasonably satisfactory any Credit Party to the Administrative Agent; provided, that any counterparty that is a Lender shall be deemed satisfactory to the Administrative Agentother Credit Party;
(cii) Indebtedness any Credit Party to any Subsidiary that is not a Credit Party;
(iii) any Subsidiary that is not a Credit Party to any Credit Party:
(A) existing on the Third Amendment Effective Closing Date and not otherwise permitted under this Section and listed (as set forth on Schedule 11.1, and the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) thereof;11.1(b)(iii)); and
(dB) purchase money Indebtedness and Indebtedness incurred in connection with Capital Leases in an aggregate amount not to exceed $40,000,000 on any date of determination;
(e) Guaranty Obligations of any Subsidiary in favor of the Administrative Agent for the benefit of the Administrative Agent and the Lenders;
(f) Guaranty Obligations of any Subsidiary with respect to Indebtedness permitted pursuant to subsections (a) through (d) of this Section;
(g) Indebtedness (i) of a Person that becomes a Subsidiary of the Borrower after the Closing Date in connection with an aggregate principal amount not to exceed at any Permitted Acquisition or time outstanding (ii1) assumed in connection with any assets acquired in connection with any Permitted Acquisition, and $40,000,000 less (2) the refinancing, refunding, renewal and extension amount of Guaranty Obligations incurred pursuant to Section 11.1(i) on the applicable date of determination less (but not 3) the increase amount of Investments made in the aggregate principal amountform of Permitted Acquisitions pursuant to Section 11.3(e)(ii) thereof; provided, that such Indebtedness during the term of this Agreement on the applicable date of determination less (x4) exists at the time such Person becomes a Subsidiary or such assets are acquired and is not created in contemplation of, or in connection with, such Person becoming a Subsidiary or such assets being acquired and (yamount of Investments made pursuant to Section 11.3(g) shall not exceed $35,000,000 in during the aggregate term of this Agreement on any the applicable date of determination;; and
(hiv) Indebtedness owed by any Subsidiary Guarantor to another Credit Party;
(i) Subordinated Indebtedness; provided that in the case of each issuance of Subordinated Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Subordinated Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a Pro Forma Basis after giving effect to the issuance of any such Subordinated Indebtedness;
(j) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, bankers acceptances, letters of credit, surety bonds or other similar obligations arising in the ordinary course of business, and any refinancings thereof to the extent not provided to secure the repayment of other Indebtedness;
(k) Indebtedness owed by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(lc) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or other similar instrument drawn against insufficient funds in the ordinary course of business;
(d) Indebtedness of a Person existing at the time such Person became a Subsidiary or assets were acquired from such Person, to the extent that (i) such Indebtedness owed by any Credit Party to any was not incurred in connection with, or in contemplation of, such Person becoming a Subsidiary which is not a Credit Party or by any Subsidiary which is not a Credit Party to a Credit Party, in each case, existing on the Closing Dateacquisition of such assets, (ii) neither the S1 Intercompany Loans Borrower nor any of its Subsidiaries (other than such Person or any other Person that such Person merges with or that acquires the assets of such Person) shall have any liability or other obligation with respect to such Indebtedness and (iii) the aggregate amount of such Indebtedness does not exceed $10,000,000 at any time outstanding;
(e) Indebtedness incurred in connection with Capital Leases and purchase money Indebtedness in an aggregate principal amount not to exceed $200,000,000, 25,000,000 at any time outstanding;
(iii) the TargetCo Intercompany Loans in an aggregate principal amount not exceed $35,000,000 and (ivf) Indebtedness owed by and obligations owing under Hedge Agreements entered into in order to manage existing or anticipated interest rate, exchange rate or commodity price risks and not for speculative purposes;
(Ag) Guaranty Obligations of the Borrower or any Credit Party of its Subsidiaries with respect to any Subsidiary which is not a Credit Party; provided that such Indebtedness shall be subordinated to the Obligations in a manner reasonably satisfactory to the Administrative Agent and (B) any Subsidiary which is not a Credit Party to any Credit Party; provided that the aggregate amount of all such intercompany Indebtedness permitted pursuant to the foregoing clauses subsections (Aa), (e) and (B), together with any equity or capital investments permitted pursuant to Section 11.3(h)(ii), in each case incurred or made after the Third Amendment Effective Date, shall not exceed, as f) of this Section;
(i) Indebtedness of the date Borrower or any of its Subsidiaries incurred in connection with Facility Capital Expenditures made on its own behalf in an aggregate amount not to exceed $50,000,000 at any time outstanding and (ii) to the extent that such Indebtedness is incurredincurred by a Credit Party, made or increased, the greater Guaranty Obligations of (A) $75,000,000 and (B) five percent (5%) of Consolidated Total Assets as of such date of determination (provided that in making such determination, such amount shall be calculated as the net balance of such loans, advances and equity or capital investments (as of such date of determination) as reduced by any repayments or distributions made other Credit Party with respect thereto to such Indebtedness (as of such date of determination)); provided, further, it being agreed and acknowledged by all parties hereto that, any Indebtedness owed to any Credit Party pursuant to this clause (l) shall be evidenced by a promissory note in form and substance reasonably satisfactory except to the Administrative Agent and shall be pledged and delivered to the Administrative Agent pursuant to the Security Documents;
(m) senior unsecured Indebtedness; provided, that: extent permitted under subsection (i) below, to the Borrower and its Subsidiaries shall be in pro forma compliance (as of the date of the incurrence of such Indebtedness and after giving effect thereto) with each covenant contained in Article X; (ii) no Default or Event of Default has occurred and is continuing at the time of such incurrence (or would exist after giving effect thereto); (iii) such Indebtedness shall rank no higher than pari passu in right of payment with the Obligations; (iv) extent that such Indebtedness is not subject to any scheduled amortization, mandatory redemption, mandatory repayment or mandatory prepayment, sinking fund or similar payment (other than, in each case, reasonable and customary offers to repurchase upon incurred by a change of control or asset sale and acceleration rights after an event of default) or have a final maturity date, in either case prior to the date occurring one (1) year following the latest of the Revolving Credit Maturity Date, the Term Loan Maturity Date or any maturity date of any Incremental Term Loan (in effect as of the date such Indebtedness is incurred) and such Indebtedness shall have a weighted average life to maturity that is no shorter than the weighted average life to maturity of each of the then outstanding Term Loans (provided that any Indebtedness that automatically converts to, or is exchangeable into, notes or other Indebtedness that meet this clause (iv) shall be deemed to satisfy this condition so long as the Borrower irrevocably agrees at the time of the issuance thereof to take all actions necessary to convert or exchange such Indebtedness); (v) the indenture or other applicable agreement governing such Indebtedness (including any related guaranties and any other related documentation) shall not include any financial performance “maintenance” covenants (whether stated as a covenant, default or otherwise, although “incurrence-based” financial tests may be included) or cross-defaults (but may include cross-defaults at the final stated maturity thereof and cross-acceleration); (vi) the terms of such Indebtedness (including, without limitation, all covenants, defaults, guaranties and remedies, but excluding provisions as to interest rate, call protection and redemption premiums), taken as a whole, are no more restrictive or onerous than the terms applicable to the Borrower and its Subsidiaries under this Agreement and the other Loan Documents, (vii) such Indebtedness shall not be recourse to, or guaranteed by, any Person Subsidiary that is not a Credit Party, (viii) prior no Credit Party shall be permitted to the incurrence of guaranty such Indebtedness the Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower certifying as to compliance with the requirements of the preceding clauses Indebtedness);
(i) through (vii) above and containing calculations, in form and substance reasonably satisfactory to the Administrative Agent Guaranty Obligations of any Credit Party with respect to clause Indebtedness of any Subsidiary that is not a Credit Party in an aggregate amount not to exceed at any time outstanding (iA) above and $40,000,000 less (ixB) to the extent such Indebtedness exceeds $350,000,000, the amount of such excess shall be used Investments made in the form of Permitted Acquisitions pursuant to prepay Section 11.3(e)(ii) during the Loans term of this Agreement on the applicable date of determination less (C) the amount of Investments made in accordance with the form of Indebtedness pursuant to Section 4.5(b)(i)11.3(f)(iv) during the term of this Agreement on the applicable date of determination less (D) the amount of Investments made pursuant to Section 11.3(g) during the term of this Agreement on the applicable date of determination; and
(nj) additional Indebtedness of the Subsidiaries not otherwise permitted pursuant to this Section in an aggregate principal amount outstanding not to exceed $75,000,0005,000,000 at any time outstanding.
Appears in 1 contract
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) the Obligations (excluding Hedging Obligations Bank Product Debt permitted pursuant to Section 11.1(b10.1(b));
(b) Indebtedness incurred in connection with a Bank Products and other Hedging Agreement Agreements with a counterparty (other than a Lender or an Affiliate of a Lender) and upon terms and conditions (including interest rate) reasonably satisfactory to the Administrative Agent; provided, that any counterparty that is a Lender shall be deemed satisfactory to the Administrative Agent;
(c) Indebtedness existing of the Company and its Restricted Subsidiaries incurred in connection with Capital Leases and purchase money Indebtedness in an aggregate amount not to exceed $50,000,000 on the Third Amendment Effective Date and not otherwise any date of determination;
(d) Guaranty Obligations with respect to Indebtedness permitted under this Section 10.1;
(e) Indebtedness owed by (i) any Domestic Credit Party to any other Domestic Credit Party or any Domestic Subsidiary that is a Restricted Subsidiary so long as such Domestic Subsidiary becomes a Domestic Credit Party within the time period specified by Section 8.11(a), (ii) any Foreign Obligor to any other Foreign Obligor, (iii) any Restricted Subsidiary that is not a Credit Party to any other Restricted Subsidiary that is not a Credit Party, (iv) any Restricted Subsidiary that is not a Guarantor to any Credit Party in an aggregate amount not to exceed $40,000,000 at any time outstanding, (v) any Domestic Credit Party to any Restricted Subsidiary that is not a Guarantor or an Unrestricted Subsidiary in an aggregate amount not to exceed $40,000,000 at any time outstanding or (vi) any Restricted Subsidiary to the Company or any other Restricted Subsidiary, pursuant to an Investment permitted by Section 10.3(h)(iii) (collectively, the “Intercompany Debt”);
(f) unsecured Indebtedness and Subordinated Indebtedness and the refinancing, refunding, renewal and extension thereof; provided that in the case of each issuance of such Indebtedness at the time of issuance, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Indebtedness, (ii) the Administrative Agent shall have received reasonably satisfactory written evidence that the Company would be in compliance with Sections 9.1 and 9.2 on a pro forma basis after giving effect to the issuance of any such Indebtedness, and (iii) (x) the maturity date of such Indebtedness shall be no earlier than the date which is six months following the Maturity Date and such Indebtedness shall not be subject to amortization or prepayment prior to such date (other than any such amortization or prepayments permitted to be paid under the applicable intercreditor or subordination agreement with respect to such Indebtedness as to which the Administrative Agent is a party) and (y) the financial covenants and events of default to which such Indebtedness is subject are not more restrictive, when taken as a whole, than the financial covenants and the Events of Default under this Agreement, as determined in good faith by the Company and the Administrative Agent (provided, that, if the Administrative Agent fails to object to such determination of the Company within three (3) Business Days after receipt of written notification thereof, the Administrative Agent will be deemed to have agreed with the Company’s determination), unless the Company agrees to amend this Agreement such that the conditions in this clause (iii) would be satisfied upon the execution of such amendment;
(g) Indebtedness incurred by the Company or any Restricted Subsidiary thereof arising from agreements providing for indemnification, adjustment of purchase price or similar obligations incurred or assumed in connection with any Permitted Acquisition to the extent permitted pursuant to Section 10.3(g);
(h) Indebtedness of Foreign Subsidiaries of the Company that are Restricted Subsidiaries in an aggregate principal amount not to exceed $50,000,000 at any time outstanding; provided that such Indebtedness shall at all times be and remain non-recourse to any Credit Party and, at the time of such issuance, no Default or Event of Default exists;
(i) [Intentionally Omitted];
(j) other Indebtedness, in an aggregate amount not to exceed $25,000,000 at any time outstanding for this clause (j);
(k) Indebtedness existing on the Closing Date and listed on Schedule 11.1, 10.1 and the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) thereof;
(dl) purchase money other Indebtedness and Indebtedness incurred in connection with Capital Leases in an aggregate principal amount not to exceed $40,000,000 on 5,000,000 at any date time outstanding for letters of determinationcredit not issued by the Issuing Lenders hereunder;
(em) Guaranty Obligations Indebtedness in respect of performance bonds, bid bonds, appeal bonds, bankers acceptances, letters of credit, surety bonds or other similar obligations arising in the ordinary course of business, and any Subsidiary in favor refinancing thereof to the extent not provided to secure the repayment of the Administrative Agent for the benefit of the Administrative Agent and the Lendersother Indebtedness;
(fn) Guaranty Obligations Indebtedness related to customer financings; provided that the aggregate principal amount of any Subsidiary with respect to all such Indebtedness permitted and all Investments made pursuant to subsections (aSection 10.3(j) through (d) of this Section;shall not exceed $25,000,000 at any time outstanding; and
(go) Indebtedness (i) of a Person that becomes a Restricted Subsidiary of the Borrower Company after the Closing Date in connection with any Permitted Acquisition or (ii) assumed in connection with any assets acquired in connection with any Permitted Acquisition, and the refinancing, refunding, renewal and extension (but not the increase in the aggregate principal amount) thereof; provided, that such Indebtedness (x) exists at the time such Person becomes a Restricted Subsidiary or such assets are acquired and is not created in contemplation of, or in connection with, such Person becoming a Restricted Subsidiary or such assets being acquired and (y) shall not exceed $35,000,000 20,000,000 in the aggregate on any date of determination;
(h) Indebtedness owed by any Subsidiary Guarantor to another Credit Party;
(i) Subordinated Indebtedness; provided that in the case of each issuance of Subordinated Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Subordinated Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a Pro Forma Basis after giving effect to the issuance of any such Subordinated Indebtedness;
(j) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, bankers acceptances, letters of credit, surety bonds or other similar obligations arising in the ordinary course of business, and any refinancings thereof to the extent not provided to secure the repayment of other Indebtedness;
(k) Indebtedness owed by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(l) (i) Indebtedness owed by any Credit Party to any Subsidiary which is not a Credit Party or by any Subsidiary which is not a Credit Party to a Credit Party, in each case, existing on the Closing Date, (ii) the S1 Intercompany Loans in an aggregate principal amount not to exceed $200,000,000, (iii) the TargetCo Intercompany Loans in an aggregate principal amount not exceed $35,000,000 and (iv) Indebtedness owed by (A) any Credit Party to any Subsidiary which is not a Credit Party; provided that such Indebtedness shall be subordinated to the Obligations in a manner reasonably satisfactory to the Administrative Agent and (B) any Subsidiary which is not a Credit Party to any Credit Party; provided that the aggregate amount of all such intercompany Indebtedness permitted pursuant to the foregoing clauses (A) and (B), together with any equity or capital investments permitted pursuant to Section 11.3(h)(ii), in each case incurred or made after the Third Amendment Effective Date, shall not exceed, as of the date such Indebtedness is incurred, made or increased, the greater of (A) $75,000,000 and (B) five percent (5%) of Consolidated Total Assets as of such date of determination (provided that in making such determination, such amount shall be calculated as the net balance of such loans, advances and equity or capital investments (as of such date of determination) as reduced by any repayments or distributions made with respect thereto (as of such date of determination)); provided, further, that, any Indebtedness owed to any Credit Party pursuant to this clause (l) shall be evidenced by a promissory note in form and substance reasonably satisfactory to the Administrative Agent and shall be pledged and delivered to the Administrative Agent pursuant to the Security Documents;
(m) senior unsecured Indebtedness; provided, that: (i) the Borrower and its Subsidiaries shall be in pro forma compliance (as of the date of the incurrence of such Indebtedness and after giving effect thereto) with each covenant contained in Article X; (ii) no Default or Event of Default has occurred and is continuing at the time of such incurrence (or would exist after giving effect thereto); (iii) such Indebtedness shall rank no higher than pari passu in right of payment with the Obligations; (iv) such Indebtedness is not subject to any scheduled amortization, mandatory redemption, mandatory repayment or mandatory prepayment, sinking fund or similar payment (other than, in each case, reasonable and customary offers to repurchase upon a change of control or asset sale and acceleration rights after an event of default) or have a final maturity date, in either case prior to the date occurring one (1) year following the latest of the Revolving Credit Maturity Date, the Term Loan Maturity Date or any maturity date of any Incremental Term Loan (in effect as of the date such Indebtedness is incurred) and such Indebtedness shall have a weighted average life to maturity that is no shorter than the weighted average life to maturity of each of the then outstanding Term Loans (provided that any Indebtedness that automatically converts to, or is exchangeable into, notes or other Indebtedness that meet this clause (iv) shall be deemed to satisfy this condition so long as the Borrower irrevocably agrees at the time of the issuance thereof to take all actions necessary to convert or exchange such Indebtedness); (v) the indenture or other applicable agreement governing such Indebtedness (including any related guaranties and any other related documentation) shall not include any financial performance “maintenance” covenants (whether stated as a covenant, default or otherwise, although “incurrence-based” financial tests may be included) or cross-defaults (but may include cross-defaults at the final stated maturity thereof and cross-acceleration); (vi) the terms of such Indebtedness (including, without limitation, all covenants, defaults, guaranties and remedies, but excluding provisions as to interest rate, call protection and redemption premiums), taken as a whole, are no more restrictive or onerous than the terms applicable to the Borrower and its Subsidiaries under this Agreement and the other Loan Documents, (vii) such Indebtedness shall not be recourse to, or guaranteed by, any Person that is not a Credit Party, (viii) prior to the incurrence of such Indebtedness the Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower certifying as to compliance with the requirements of the preceding clauses (i) through (vii) above and containing calculations, in form and substance reasonably satisfactory to the Administrative Agent with respect to clause (i) above and (ix) to the extent such Indebtedness exceeds $350,000,000, the amount of such excess shall be used to prepay the Loans in accordance with Section 4.5(b)(i); and
(n) additional Indebtedness of the Subsidiaries not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed $75,000,000.
Appears in 1 contract
Sources: Credit Agreement (Blackbaud Inc)
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) the Obligations (excluding Hedging Obligations permitted pursuant to Section 11.1(b));
(b) Indebtedness incurred in connection with a Hedging Agreement not entered into for speculative purposes and with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory to the Administrative Agent; provided, provided that any counterparty that is a Lender or an Affiliate of a Lender shall be deemed satisfactory to the Administrative Agent;
(c) Indebtedness existing on the Third Amendment Effective Restatement Date and not otherwise permitted under this Section and listed on Schedule 11.1, and the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) thereof;
(d) purchase money Indebtedness and Indebtedness incurred in connection with Capital Leases in an aggregate amount not to exceed $40,000,000 on any date of determinationdetermination the greater of $40,000,000 and 10% of Consolidated EBITDA for the period of four (4) consecutive fiscal quarters most recently ended on or prior to such date for which financial statements have been delivered pursuant to Section 8.1;
(e) Guaranty Obligations of any Subsidiary in favor of the Administrative Agent for the benefit of the Administrative Agent and the Lenders;
(f) Guaranty Obligations of any Subsidiary with respect to Indebtedness permitted pursuant to subsections (a) through (d) of this Section;
(g) Indebtedness (i) of a Person that becomes a Subsidiary of the Parent Borrower after the Closing Restatement Date in connection with any Permitted Acquisition or (ii) assumed in connection with any assets acquired in connection with any Permitted Acquisition, and the refinancing, refunding, renewal and extension (but not the increase in the aggregate principal amount) thereof; provided, that such Indebtedness (x) exists at the time such Person becomes a Subsidiary or such assets are acquired and is not created in contemplation of, or in connection with, such Person becoming a Subsidiary or such assets being acquired and (y) shall not exceed $35,000,000 in the aggregate on any date of determinationdetermination the greater of $35,000,000 and 10% of Consolidated EBITDA for the period of four (4) consecutive fiscal quarters most recently ended on or prior to such date for which financial statements have been delivered pursuant to Section 8.1;
(h) Indebtedness owed by any Subsidiary Guarantor to another Credit Party;
(i) Subordinated Indebtedness; provided that in the case of each issuance of Subordinated Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Subordinated Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower Borrowers would be in compliance with all covenants contained in this Agreement on a Pro Forma Basis after giving effect to the issuance of any such Subordinated Indebtedness;
(j) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, bankers acceptances, letters of credit, surety bonds or other similar obligations arising in the ordinary course of business, and any refinancings thereof to the extent not provided to secure the repayment of other Indebtedness;
(k) Indebtedness owed by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(l) (i) Indebtedness owed by any Credit Party to any Subsidiary which is not a Credit Party or by any Subsidiary which is not a Credit Party to a Credit Party, in each case, existing on the Closing Date, (ii) the S1 Intercompany Loans in an aggregate principal amount not to exceed $200,000,000, (iii) the TargetCo Intercompany Loans in an aggregate principal amount not exceed $35,000,000 and (iv) Indebtedness owed by (A) any Credit Party to any Subsidiary which is not a Credit Party; provided that such Indebtedness shall be subordinated to the Obligations in a manner reasonably satisfactory to the Administrative Agent and (B) any Subsidiary which is not a Credit Party to any Credit Party; provided that the aggregate amount of all such intercompany Indebtedness permitted pursuant to the foregoing clauses (A) and (B), together with any equity or capital investments permitted pursuant to Section 11.3(h)(ii), in each case incurred or made after the Third Amendment Effective Restatement Date, shall not exceed, as of the date such Indebtedness is incurred, made or increased, the greater of (A) $75,000,000 and (B) five percent (5%) of Consolidated Total Assets as of such date of determination (provided that in making such determination, such amount shall be calculated as the net balance of such loans, advances and equity or capital investments (as of such date of determination) as reduced by any repayments or distributions made with respect thereto (as of such date of determination))225,000,000; provided, further, that, any Indebtedness owed to any Credit Party pursuant to this clause (l) shall be evidenced by a promissory note in form and substance reasonably satisfactory to the Administrative Agent and shall be pledged and delivered to the Administrative Agent pursuant to the Security Documents;
(m) senior unsecured Indebtedness; provided, that: (i) the Parent Borrower and its Subsidiaries shall be in pro forma compliance (as of the date of the incurrence of such Indebtedness and after giving effect thereto) with each covenant contained in Article X; (ii) no Default or Event of Default has occurred and is continuing at the time of such incurrence (or would exist after giving effect thereto); (iii) such Indebtedness shall rank no higher than pari passu in right of payment with the Obligations; (iv) such Indebtedness is not subject to any scheduled amortization, mandatory redemption, mandatory repayment or mandatory prepayment, sinking fund or similar payment (other than, in each case, reasonable and customary offers to repurchase upon a change of control or asset sale and acceleration rights after an event of default) or have a final maturity date, in either case prior to the date occurring one (1) year following the latest of the Revolving Credit Maturity Date, the Term Loan Maturity Date or any maturity date of any Incremental Term Loan (in effect as of the date such Indebtedness is incurred) and such Indebtedness shall have a weighted average life to maturity that is no shorter than the weighted average life to maturity of each of the then outstanding Term Loans (provided that any Indebtedness that automatically converts to, or is exchangeable into, notes or other Indebtedness that meet this clause (iv) shall be deemed to satisfy this condition so long as the Borrower irrevocably agrees at the time of the issuance thereof to take all actions necessary to convert or exchange such Indebtedness); (v) the indenture or other applicable agreement governing such Indebtedness (including any related guaranties and any other related documentation) shall not include any financial performance “maintenance” covenants (whether stated as a covenant, default or otherwise, although “incurrence-based” financial tests may be included) or cross-defaults (but may include cross-defaults at the final stated maturity thereof and cross-acceleration); (vi) the terms of such Indebtedness (including, without limitation, all covenants, defaults, guaranties and remedies, but excluding provisions as to interest rate, call protection and redemption premiums), taken as a whole, are no more restrictive or onerous than the terms applicable to the Parent Borrower and its Subsidiaries under this Agreement and the other Loan Documents, (vii) such Indebtedness shall not be recourse to, or guaranteed by, any Person that is not a Credit Party, (viii) prior to the incurrence of such Indebtedness the Parent Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Parent Borrower certifying as to compliance with the requirements of the preceding clauses (i) through (vii) above and containing calculations, in form and substance reasonably satisfactory to the Administrative Agent with respect to clause (i) above and above;
(ixn) Indebtedness with respect to the extent such Indebtedness exceeds 2026 Senior Notes (including any guarantees thereof), in an aggregate amount not to exceed $350,000,000400,000,000, or any modification, refinancing, refunding, renewal or extension of the 2026 Senior Notes (but not increasing the aggregate principal amount of such excess shall be used to prepay the Loans in accordance with Section 4.5(b)(ithereof); and
(no) additional Indebtedness of the Subsidiaries not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed the greater of $75,000,00075,000,000 and 20% of Consolidated EBITDA for the period of four (4) consecutive fiscal quarters most recently ended on or prior to such date for which financial statements have been delivered pursuant to Section 8.1.
Appears in 1 contract
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) the Obligations (excluding Hedging Specified Hedge Obligations permitted pursuant to Section 11.1(b10.1(b));
(b) Indebtedness incurred in connection with a Hedging Agreement with a counterparty and upon terms and conditions obligations owing under Hedge Agreements (including interest rateincluding, without duplication, letters of credit issued to support the same) reasonably satisfactory to the Administrative Agent; provided, that any counterparty that is a Lender shall be deemed satisfactory to the Administrative Agentpermitted under Section 10.12;
(c) Indebtedness existing on the Third Amendment Effective Restatement Date and not otherwise permitted under this Section and listed on Schedule 11.16.19, and the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) thereof;
(d) purchase money Indebtedness and Indebtedness incurred in connection with respect of Capital Leases for fixed or capital assets within the limitations set forth in an Section 10.2(h); provided that the aggregate outstanding amount of such Indebtedness shall not to exceed $40,000,000 on 50,000,000 at any date of determinationtime;
(e) Guaranty Obligations Indebtedness of any a Person existing at the time such Person became a Subsidiary or Indebtedness related to assets acquired from such Person in favor connection with an Investment permitted pursuant to Section 10.3, to the extent that such Indebtedness was not incurred in connection with, or in contemplation of, such Person becoming a Subsidiary or the acquisition of the Administrative Agent for the benefit of the Administrative Agent and the Lenderssuch assets;
(f) unsecured Indebtedness of the Borrower owing to the General Partner or an Affiliate of the General Partner (including MLP); provided that (i) the aggregate principal amount of such Indebtedness does not exceed $200,000,000 at any time outstanding and (ii) such Indebtedness shall be subordinated to the Obligations in a manner reasonably satisfactory to the Administrative Agent;
(g) Guaranty Obligations of any Subsidiary with respect to Indebtedness permitted pursuant to subsections paragraphs (a) through (de), (i), (j), (k), and (n) (so long as such Indebtedness is not also a Guaranty Obligation) of this Section;
(gh) unsecured intercompany Indebtedness (i) of a Person that becomes a Subsidiary of owed by the Borrower after the Closing Date in connection with to any Permitted Acquisition or Subsidiary Guarantor, (ii) assumed in connection with owed by any assets acquired in connection with any Permitted AcquisitionSubsidiary Guarantor to the Borrower or another Subsidiary Guarantor, and (iii) owed by the refinancing, refunding, renewal and extension (but not the increase in the aggregate principal amount) thereofBorrower or any Subsidiary Guarantor to any Non-Guarantor Subsidiary; provided, that such Indebtedness (x) exists at shall be subordinated to the time such Person becomes Obligations in a Subsidiary or such assets are acquired and is not created in contemplation of, or in connection with, such Person becoming a Subsidiary or such assets being acquired and (y) shall not exceed $35,000,000 in manner reasonably satisfactory to the aggregate on any date of determination;
(h) Indebtedness owed by any Subsidiary Guarantor to another Credit PartyAdministrative Agent;
(i) Subordinated IndebtednessIndebtedness arising from the honoring by a bank or other financial institution of a check, draft or other similar instrument drawn against insufficient funds in the ordinary course of business;
(j) other unsecured Indebtedness not otherwise permitted under this Section of the Borrower and the Subsidiary Guarantors; provided provided, that in the case of each issuance incurrence of Subordinated such Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance incurrence of such Subordinated Indebtedness and Indebtedness, (ii) the Administrative Agent documentation evidencing such Indebtedness shall have received satisfactory written evidence that not contain financial covenants which are, individually or in the Borrower would be in compliance with all covenants contained in this Agreement on a Pro Forma Basis aggregate, more restrictive than those set forth herein, and (iii) such Indebtedness shall mature no earlier than six (6) months after giving effect to the issuance of any such Subordinated IndebtednessRevolving Credit Maturity Date;
(jk) Indebtedness in respect of under performance bonds, bid surety bonds, release, appeal and similar bonds, bankers acceptancesstatutory obligations or with respect to workers’ compensation claims, letters of credit, surety bonds or other similar obligations arising in each case incurred in the ordinary course of business, and reimbursement obligations in respect of any refinancings thereof to of the extent not provided to secure the repayment of other Indebtedness;
(k) Indebtedness owed by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Partyforegoing;
(l) (i) Indebtedness owed by any Credit Party to any Subsidiary which is not a Credit Party or by any Subsidiary which is not a Credit Party to a Credit Party, in each case, existing on the Closing Date, (ii) the S1 Intercompany Loans respect of non-compete agreements entered into in an aggregate principal amount not to exceed $200,000,000, (iii) the TargetCo Intercompany Loans in an aggregate principal amount not exceed $35,000,000 and (iv) Indebtedness owed by (A) any Credit Party to any Subsidiary which is not a Credit Party; provided that such Indebtedness shall be subordinated to the Obligations in a manner reasonably satisfactory to the Administrative Agent and (B) any Subsidiary which is not a Credit Party to any Credit Party; provided that the aggregate amount of all such intercompany Indebtedness permitted pursuant to the foregoing clauses (A) and (B), together connection with any equity or capital investments permitted pursuant to Section 11.3(h)(ii), in each case incurred or made after the Third Amendment Effective Date, shall not exceed, as of the date such Indebtedness is incurred, made or increased, the greater of (A) $75,000,000 and (B) five percent (5%) of Consolidated Total Assets as of such date of determination (provided that in making such determination, such amount shall be calculated as the net balance of such loans, advances and equity or capital investments (as of such date of determination) as reduced by any repayments or distributions made with respect thereto (as of such date of determination)); provided, further, that, any Indebtedness owed to any Credit Party pursuant to this clause (l) shall be evidenced by a promissory note in form and substance reasonably satisfactory to the Administrative Agent and shall be pledged and delivered to the Administrative Agent pursuant to the Security DocumentsPermitted Acquisitions;
(m) senior unsecured Indebtedness; provided, that: (i) the Borrower and its Subsidiaries shall be in pro forma compliance (as of the date of the incurrence of such Indebtedness and after giving effect thereto) with each covenant contained in Article X; (ii) no Default or Event of Default has occurred and is continuing at the time of such incurrence (or would exist after giving effect thereto); (iii) such Indebtedness shall rank no higher than pari passu in right of payment with the Obligations; (iv) such Indebtedness is not subject to arising under any scheduled amortization, mandatory redemption, mandatory repayment or mandatory prepayment, sinking fund or similar payment (other than, in each case, reasonable and customary offers to repurchase upon a change of control or asset sale and acceleration rights after an event of default) or have a final maturity date, in either case prior to the date occurring one (1) year following the latest of the Revolving Credit Maturity Date, the Term Loan Maturity Date or any maturity date of any Incremental Term Loan (in effect as of the date such Indebtedness is incurred) and such Indebtedness shall have a weighted average life to maturity that is no shorter than the weighted average life to maturity of each of the then outstanding Term Loans (provided that any Indebtedness that automatically converts to, or is exchangeable into, notes or other Indebtedness that meet this clause (iv) shall be deemed to satisfy this condition so long as the Borrower irrevocably agrees at the time of the issuance thereof to take all actions necessary to convert or exchange such Indebtedness); (v) the indenture or other applicable agreement governing such Indebtedness (including any related guaranties and any other related documentation) shall not include any financial performance “maintenance” covenants (whether stated as a covenant, default or otherwise, although “incurrence-based” financial tests may be included) or cross-defaults (but may include cross-defaults at the final stated maturity thereof and cross-acceleration); (vi) the terms of such Indebtedness securitization program (including, without limitation, all covenants, defaults, guaranties and remedies, but excluding provisions as any Accounts Receivable Securitization) in an aggregate amount not to interest rate, call protection and redemption premiums), taken as a whole, are no more restrictive or onerous than the terms applicable to the Borrower and its Subsidiaries under this Agreement and the other Loan Documents, (vii) such Indebtedness shall not be recourse to, or guaranteed by, exceed $100,000,000 at any Person that is not a Credit Party, (viii) prior to the incurrence of such Indebtedness the Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower certifying as to compliance with the requirements of the preceding clauses (i) through (vii) above and containing calculations, in form and substance reasonably satisfactory to the Administrative Agent with respect to clause (i) above and (ix) to the extent such Indebtedness exceeds $350,000,000, the amount of such excess shall be used to prepay the Loans in accordance with Section 4.5(b)(i); andtime outstanding;
(n) additional Indebtedness of the Subsidiaries not otherwise permitted pursuant to this Section in an aggregate principal amount outstanding not to exceed $75,000,00050,000,000 at any time outstanding; and
(o) Secured Indebtedness under those certain notes (the “Heritage Notes”) issued pursuant to those certain Note Purchase Agreements, dated as of November 19, 1997 and August 10, 2000, each between Heritage Operating, L.P. and the purchasers named therein (as amended, the “Heritage Note Purchase Agreements”) in the aggregate principal amount not to exceed $12,000,000.
Appears in 1 contract
Limitations on Indebtedness. CreateDirectly or indirectly create, incur, assume or suffer otherwise become directly or indirectly liable with respect to exist any Indebtedness exceptexcept for the following:
(a) the Obligations (excluding Hedging Obligations permitted Indebtedness incurred by any Loan Party or Escrow Subsidiary pursuant to Section 11.1(b));the Term Loan Facility and Indebtedness incurred by any Loan Party otherwise than pursuant to the Term Loan Facility (including pursuant to any Additional Obligations Documents, any Permitted Debt Exchange or any Rollover Indebtedness but not pursuant to the Loan Documents) in an aggregate principal amount at any time outstanding not to exceed (A) $325,000,000 plus (B) the Maximum Incremental Facilities Amount.
(b) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries incurred in connection with a Hedging pursuant to this Agreement with a counterparty and upon terms and conditions the other Loan Documents (including interest rate) reasonably satisfactory to the Administrative Agent; providedany Incremental Facility, that Extension or any counterparty that is a Lender shall be deemed satisfactory to the Administrative AgentCredit Agreement Refinancing Indebtedness);
(c) Unsecured Indebtedness existing on of the Third Amendment Effective Date and not otherwise permitted under this Section and listed on Schedule 11.1, and the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) thereofParent Borrower or any of its Restricted Subsidiaries;
(d) purchase money Indebtedness (other than Indebtedness permitted by clauses (a) through (c) above) existing on the Closing Date, and Indebtedness incurred in connection disclosed on Schedule 8.13(d), together with Capital Leases in an aggregate amount not any renewal, extension, refinancing or refunding pursuant to exceed $40,000,000 on any date of determinationclause (i) below;
(e) Guaranty Obligations of any Subsidiary in favor Secured Indebtedness of the Administrative Agent for Parent Borrower or any of its Restricted Subsidiaries in an aggregate principal amount at any time outstanding not to exceed the benefit greater of (x) $150,000,000 and (y) 6.25% of Consolidated Total Assets and only so long as the Administrative Agent Liens securing such Indebtedness are incurred under and the Lendersin compliance with Subsection 8.14(p);
(f) Guaranty Guarantee Obligations incurred by:
(i) the Parent Borrower or any of any Subsidiary with its Restricted Subsidiaries in respect to of Indebtedness of a Loan Party that is permitted hereunder; provided that Guarantee Obligations in respect of Indebtedness permitted pursuant to subsections clauses (a), (c) through and (dm) shall be permitted only to the extent that such Guarantee Obligations are incurred by Guarantors (other than, in the case of clause (m), Guarantee Obligations incurred by any Foreign Subsidiary that is not a Guarantor);
(ii) the Parent Borrower or any of its Restricted Subsidiaries in respect of lease obligations of Non-Loan Parties (to the extent such lease obligations constitute Indebtedness);
(iii) a Non-Loan Party in respect of Indebtedness of another Non-Loan Party that is permitted hereunder;
(iv) the Parent Borrower or any of its Restricted Subsidiaries in respect of Indebtedness of any Person; provided that the aggregate amount at any time outstanding of such Guarantee Obligations incurred pursuant to this clause (iv), when aggregated with the amount of all other Guarantee Obligations incurred and outstanding pursuant to this clause (iv) and all Indebtedness incurred and outstanding pursuant to clause (w) of this Section;
(g) Indebtedness (i) Subsection 8.13, shall not exceed the greater of a Person that becomes a Subsidiary of the Borrower after the Closing Date in connection with any Permitted Acquisition or (ii) assumed in connection with any assets acquired in connection with any Permitted Acquisition, and the refinancing, refunding, renewal and extension (but not the increase in the aggregate principal amount) thereof; provided, that such Indebtedness (x) exists at the time such Person becomes a Subsidiary or such assets are acquired and is not created in contemplation of, or in connection with, such Person becoming a Subsidiary or such assets being acquired $195,000,000 and (y) shall not exceed $35,000,000 in 11.50% of Consolidated Total Assets at the aggregate on any date time of determinationsuch Guarantee Obligations being incurred;
(hv) Indebtedness owed by the Parent Borrower or any Subsidiary Guarantor of its Restricted Subsidiaries in connection with sales or other dispositions permitted under Subsection 8.5, including indemnification obligations with respect to another Credit Partyleases, and guarantees of collectability in respect of accounts receivable or notes receivable for up to face value;
(i) Subordinated Indebtedness; provided that in the case of each issuance of Subordinated Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Subordinated Indebtedness and (iivi) the Administrative Agent shall have received satisfactory written evidence that Parent Borrower or any of its Restricted Subsidiaries consisting of accommodation guarantees for the benefit of trade creditors of the Parent Borrower would be in compliance with all covenants contained in this Agreement on a Pro Forma Basis after giving effect to the issuance or any of any such Subordinated Indebtedness;
(j) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, bankers acceptances, letters of credit, surety bonds or other similar obligations arising its Restricted Subsidiaries in the ordinary course of business, and any refinancings thereof to the extent not provided to secure the repayment of other Indebtedness;
(kvii) Indebtedness owed by the Parent Borrower or any Subsidiary that is not a Credit Party of its Restricted Subsidiaries in respect of Investments expressly permitted pursuant to any other Subsidiary that is not a Credit Partyclause (c), (j), (l), (m) or (v) of the definition of “Permitted Investments”;
(viii) the Parent Borrower or any of its Restricted Subsidiaries in respect of (x) Management Guarantees and (y) third-party loans and advances to officers or employees of any Parent Entity or the Parent Borrower or any of its Restricted Subsidiaries permitted pursuant to clause (l) or (im) Indebtedness owed by any Credit Party to any Subsidiary which is not a Credit Party or by any Subsidiary which is not a Credit Party to a Credit Party, in each case, existing on of the Closing Date, definition of “Permitted Investments”;
(iiix) the S1 Intercompany Loans Parent Borrower or any of its Restricted Subsidiaries in an aggregate principal amount not respect of Reimbursement Obligations in respect of Letters of Credit or with respect to exceed $200,000,000, reimbursement obligations in respect of any other letters of credit permitted under this Agreement;
(iiix) the TargetCo Intercompany Loans Parent Borrower or any of its Restricted Subsidiaries in an aggregate principal amount not exceed $35,000,000 respect of performance, bid, appeal, surety, judgment, replevin and similar bonds, other suretyship arrangements, other similar obligations and letters of credit, bankers’ acceptances or similar instruments or obligations, all in, or relating to liabilities or obligations incurred in, the ordinary course of business; and
(ivxi) the Parent Borrower or any of its Restricted Subsidiaries in respect of Indebtedness owed by (A) any Credit Party to any Subsidiary or other obligations of a Person in connection with a joint venture or similar arrangement in respect of which is not a Credit Party; provided that such Indebtedness shall be subordinated to the Obligations in a manner reasonably satisfactory to the Administrative Agent and (B) any Subsidiary which is not a Credit Party to any Credit Party; provided that the aggregate outstanding amount of all such intercompany Indebtedness Indebtedness, together with the aggregate outstanding amount of Investments permitted pursuant to the foregoing clauses clause (Aq) and (B), together with any equity or capital investments permitted pursuant to Section 11.3(h)(ii), in each case incurred or made after the Third Amendment Effective Date, shall not exceed, as of the date such Indebtedness is incurreddefinition of “Permitted Investments”, made or increased, does not exceed the greater of (Ax) $75,000,000 20,000,000 and (By) five percent (5%) 0.85% of Consolidated Total Assets as of such date of determination (provided that in making such determination, such amount shall be calculated as the net balance of such loans, advances and equity or capital investments (as of such date of determination) as reduced by any repayments or distributions made with respect thereto (as of such date of determination))Assets; provided, furtherhowever, that, that if any Indebtedness owed referred to any Credit Party pursuant to this clause (l) shall be evidenced by a promissory note in form and substance reasonably satisfactory to the Administrative Agent and shall be pledged and delivered to the Administrative Agent pursuant to the Security Documents;
(m) senior unsecured Indebtedness; provided, that: (i) the Borrower and its Subsidiaries shall be in pro forma compliance (as of the date of the incurrence of such Indebtedness and after giving effect thereto) with each covenant contained in Article X; (ii) no Default or Event of Default has occurred and is continuing at the time of such incurrence (or would exist after giving effect thereto); (iii) such Indebtedness shall rank no higher than pari passu in right of payment with the Obligations; (iv) such Indebtedness is not subject to any scheduled amortization, mandatory redemption, mandatory repayment or mandatory prepayment, sinking fund or similar payment (other than, in each case, reasonable and customary offers to repurchase upon a change of control or asset sale and acceleration rights after an event of default) or have a final maturity date, in either case prior to the date occurring one (1) year following the latest of the Revolving Credit Maturity Date, the Term Loan Maturity Date or any maturity date of any Incremental Term Loan (in effect as of the date such Indebtedness is incurred) and such Indebtedness shall have a weighted average life to maturity that is no shorter than the weighted average life to maturity of each of the then outstanding Term Loans (provided that any Indebtedness that automatically converts to, or is exchangeable into, notes or other Indebtedness that meet this clause (iv) shall be deemed to satisfy this condition so long as the Borrower irrevocably agrees at the time of the issuance thereof to take all actions necessary to convert or exchange such Indebtedness); (v) the indenture or other applicable agreement governing such Indebtedness (including any related guaranties and any other related documentation) shall not include any financial performance “maintenance” covenants (whether stated as a covenant, default or otherwise, although “incurrence-based” financial tests may be included) or cross-defaults (but may include cross-defaults at the final stated maturity thereof and cross-acceleration); (vi) the terms of such Indebtedness (including, without limitation, all covenants, defaults, guaranties and remedies, but excluding provisions as to interest rate, call protection and redemption premiums), taken as a whole, are no more restrictive or onerous than the terms applicable to the Borrower and its Subsidiaries under this Agreement and the other Loan Documents, (vii) such Indebtedness shall not be recourse to, or guaranteed by, any Person that is not a Credit Party, (viii) prior to the incurrence of such Indebtedness the Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower certifying as to compliance with the requirements of the preceding clauses (i) through (viiiv) above and containing calculations, is subordinated in form and substance reasonably satisfactory right of payment to the Administrative Agent with respect Obligations or is secured by Liens that are senior or subordinate to clause (i) above and (ix) to any Liens securing the extent such Indebtedness exceeds $350,000,000Collateral, the amount of such excess then any corresponding Guarantee Obligations shall be used subordinated and the Liens securing the corresponding Guarantee Obligations shall be senior or subordinate to prepay substantially the Loans in accordance with Section 4.5(b)(i); and
(n) additional Indebtedness of the Subsidiaries not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed $75,000,000.same extent;
Appears in 1 contract
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) the Obligations (excluding Hedging Obligations permitted pursuant to Section 11.1(b10.1(b));
(b) Indebtedness incurred in connection with a Hedging Agreement with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory to the Administrative Agent; provided, that any counterparty that is a Lender shall be deemed satisfactory to the Administrative Agent;
(c) Indebtedness existing on the Third Amendment Effective Closing Date and not otherwise permitted under this Section and listed on Schedule 11.110.1, and the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) thereof;
(d) purchase money Indebtedness and Indebtedness incurred in connection with Capital Leases in an aggregate amount not to exceed $40,000,000 10,000,000 on any date of determination;
(e) Guaranty Obligations of any Subsidiary in favor of the Administrative Agent for the benefit of the Administrative Agent and the Lenders;
(f) Guaranty Obligations of any Subsidiary with respect to Indebtedness permitted pursuant to subsections (a) through (d) of this Section;
(g) Indebtedness (i) of a Person that becomes a Subsidiary of the Borrower after the Closing Date in connection with any Permitted Acquisition or (ii) assumed in connection with any assets acquired in connection with any Permitted Acquisition, and the refinancing, refunding, renewal and extension (but not the increase in the aggregate principal amount) thereof; provided, that such Indebtedness (x) exists at the time such Person becomes a Subsidiary or such assets are acquired and is not created in contemplation of, or in connection with, such Person becoming a Subsidiary or such assets being acquired and (y) shall not exceed $35,000,000 10,000,000 in the aggregate on any date of determination;
(h) Indebtedness owed by any Subsidiary Guarantor to another Credit Party;
(i) Subordinated Indebtedness; provided that in the case of each issuance of Subordinated Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Subordinated Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a Pro Forma Basis pro forma basis after giving effect to the issuance of any such Subordinated Indebtedness;
(j) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, bankers acceptances, letters of credit, surety bonds or other similar obligations arising in the ordinary course of business, and any refinancings thereof to the extent not provided to secure the repayment of other Indebtedness;
(k) Indebtedness owed by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(l) (i) Indebtedness owed by any Credit Party to any Subsidiary which is not a Credit Party or by any Subsidiary which is not a Credit Party to a Credit Party, in each case, existing on the Closing Date, (ii) the S1 Intercompany Loans in an aggregate principal amount not to exceed $200,000,000, (iii) the TargetCo Intercompany Loans in an aggregate principal amount not exceed $35,000,000 and (iv) Indebtedness owed by (Ai) any Credit Party to any Subsidiary which is not a Credit Party; provided that such Indebtedness shall be subordinated to the Obligations in a manner reasonably satisfactory to the Administrative Agent and (Bii) any Subsidiary which is not a Credit Party to any Credit Party; provided, that, if requested by the Administrative Agent, such Indebtedness shall be payable on demand; provided further that the aggregate amount of all such intercompany Indebtedness permitted pursuant to the foregoing clauses (Ai) and (B), together with any ii) and equity or capital investments permitted pursuant to Section 11.3(h)(ii10.3(h), in each case incurred or made after the Third Amendment Effective Closing Date, shall not exceed, as of the date such Indebtedness is incurred, made or increased, the greater of (A) exceed $75,000,000 and (B) five percent (5%) of Consolidated Total Assets as of such 50,000,000 outstanding on any date of determination (provided that in making such determination, such which amount shall be calculated as the net balance of such loans, advances and equity or and capital investments (as of such date of determination) as reduced by any repayments or distributions made with respect thereto (as of such date of determinationthereto)); provided, further, that, any Indebtedness owed to any Credit Party pursuant to this clause (l) shall be evidenced by a promissory note in form and substance reasonably satisfactory to the Administrative Agent and shall be pledged and delivered to the Administrative Agent pursuant to the Security Documents;
(m) senior unsecured Indebtedness; provided, that: (i) the Borrower and its Subsidiaries shall be in pro forma compliance (so long as of the date of the incurrence of such Indebtedness and after giving effect thereto) with each covenant contained in Article X; (ii) no Default or Event of Default has occurred and is continuing at the time of such incurrence (or would exist after giving effect thereto)result therefrom, unsecured Indebtedness of the Borrower; (iii) provided, that such Indebtedness shall rank no higher than be pari passu in right of payment with the Obligations; (iv) such Indebtedness is not subject to any scheduled amortization, mandatory redemption, mandatory repayment or mandatory prepayment, sinking fund or similar payment (other than, in each case, reasonable and customary offers to repurchase upon a change of control or asset sale and acceleration rights after an event of default) or have a final maturity date, in either case prior to the date occurring one (1) year following the latest of the Revolving Credit Maturity Date, the Term Loan Maturity Date or any maturity date of any Incremental Term Loan (in effect as of the date such Indebtedness is incurred) and such Indebtedness shall have a weighted average life to maturity that is no shorter than the weighted average life to maturity of each of the then outstanding Term Loans (provided that any Indebtedness that automatically converts to, or is exchangeable into, notes or other Indebtedness that meet this clause (iv) shall be deemed to satisfy this condition so long as the Borrower irrevocably agrees at the time of the issuance thereof to take all actions necessary to convert or exchange such Indebtedness); (v) the indenture or other applicable agreement governing such Indebtedness (including any related guaranties and any other related documentation) shall not include any financial performance “maintenance” covenants (whether stated as a covenant, default or otherwise, although “incurrence-based” financial tests may be included) or cross-defaults (but may include cross-defaults at the final stated maturity thereof and cross-acceleration); (vi) the terms of such Indebtedness (including, without limitation, all covenants, defaults, guaranties and remedies, but excluding provisions as to interest rate, call protection and redemption premiums), taken as a whole, are no more restrictive or onerous than the terms applicable to the Borrower and its Subsidiaries under this Agreement and the other Loan Documents, (vii) such Indebtedness shall not be recourse to, or guaranteed by, any Person that is not a Credit Party, (viii) prior to the incurrence of such Indebtedness the Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower certifying as to compliance with the requirements of the preceding clauses (i) through (vii) above and containing calculations, in form and substance reasonably satisfactory to the Administrative Agent with respect to clause (i) above and (ix) to the extent such Indebtedness exceeds $350,000,000, the amount of such excess shall be used to prepay the Loans in accordance with Section 4.5(b)(i); and
(n) additional Indebtedness of the Subsidiaries not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed $75,000,0005,000,000.
Appears in 1 contract
Sources: Credit Agreement (Transaction Systems Architects Inc)
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) the Obligations (excluding Hedging Obligations permitted pursuant to Section 11.1(b10.1(b));
(b) Indebtedness incurred in connection with a Hedging Agreement with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory to the Administrative Agent; provided, that any counterparty that is a Lender shall be deemed satisfactory to the Administrative Agent;
(c) Indebtedness existing on the Third Amendment Effective Closing Date and not otherwise permitted under this Section and listed on Schedule 11.110.1, and the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) thereof;
(d) purchase money Indebtedness and Indebtedness incurred in connection with Capital Leases in an aggregate amount not to exceed $40,000,000 25,000,000 on any date of determination;
(e) Guaranty Obligations of any Subsidiary in favor of the Administrative Agent for the benefit of the Administrative Agent and the Lenders;
(f) Guaranty Obligations of any Subsidiary with respect to Indebtedness permitted pursuant to subsections (a) through (d) of this Section;
(g) Indebtedness (i) of a Person that becomes a Subsidiary of the Borrower after the Closing Date in connection with any Permitted Acquisition or (ii) assumed in connection with any assets acquired in connection with any Permitted Acquisition, and the refinancing, refunding, renewal and extension (but not the increase in the aggregate principal amount) thereof; provided, that such Indebtedness (x) exists at the time such Person becomes a Subsidiary or such assets are acquired and is not created in contemplation of, or in connection with, such Person becoming a Subsidiary or such assets being acquired and (y) shall not exceed $35,000,000 20,000,000 in the aggregate on any date of determination;
(h) Indebtedness owed by any Subsidiary Guarantor to another Credit Party;
(i) Subordinated Indebtedness; provided that in the case of each issuance of Subordinated Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Subordinated Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a Pro Forma Basis after giving effect to the issuance of any such Subordinated Indebtedness;
(j) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, bankers acceptances, letters of credit, surety bonds or other similar obligations arising in the ordinary course of business, and any refinancings thereof to the extent not provided to secure the repayment of other Indebtedness;
(k) Indebtedness owed by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(l) (i) Indebtedness owed by any Credit Party to any Subsidiary which is not a Credit Party or by any Subsidiary which is not a Credit Party to a Credit Party, in each case, existing on the Closing Date, Date and (ii) the S1 Intercompany Loans in an aggregate principal amount not to exceed $200,000,000, (iii) the TargetCo Intercompany Loans in an aggregate principal amount not exceed $35,000,000 and (iv) Indebtedness owed by (A) any Credit Party to any Subsidiary which is not a Credit Party; provided that such Indebtedness shall be subordinated to the Obligations in a manner reasonably satisfactory to the Administrative Agent and (B) any Subsidiary which is not a Credit Party to any Credit Party; provided, that, if requested by the Administrative Agent, such Indebtedness shall be payable on demand; provided further that the aggregate amount of all such intercompany Indebtedness permitted pursuant to the foregoing clauses (A) and (B), together with any intercompany Indebtedness, equity or capital investments permitted pursuant to Section 11.3(h)(ii10.3(h), in each case incurred or made after the Third Amendment Effective Closing Date, shall not exceed, as of the date such Indebtedness is incurred, made or increased, the greater of (A) exceed $75,000,000 and (B) five percent (5%) of Consolidated Total Assets as of such 50,000,000 outstanding on any date of determination (provided that in making such determination, such which amount shall be calculated as the net balance of such loans, advances and equity or and capital investments (as of such date of determination) as reduced by any repayments or distributions made with respect thereto (as of such date of determinationthereto)); provided, further, that, any Indebtedness owed to any Credit Party pursuant to this clause (l) shall be evidenced by a promissory note in form and substance reasonably satisfactory to the Administrative Agent and shall be pledged and delivered to the Administrative Agent pursuant to the Security Documents;
(m) senior unsecured Indebtedness; provided, that: (i) the Borrower and its Subsidiaries shall be in pro forma compliance (so long as of the date of the incurrence of such Indebtedness and after giving effect thereto) with each covenant contained in Article X; (ii) no Default or Event of Default has occurred and is continuing at the time of such incurrence (or would exist after giving effect thereto); (iii) such result therefrom, senior unsecured Indebtedness shall rank no higher than pari passu in right of payment with the Obligations; (iv) such Indebtedness is not subject to any scheduled amortization, mandatory redemption, mandatory repayment or mandatory prepayment, sinking fund or similar payment (other than, in each case, reasonable and customary offers to repurchase upon a change of control or asset sale and acceleration rights after an event of default) or have a final maturity date, in either case prior to the date occurring one (1) year following the latest of the Revolving Credit Maturity Date, the Term Loan Maturity Date or any maturity date of any Incremental Term Loan (in effect as of the date such Indebtedness is incurred) and such Indebtedness shall have a weighted average life to maturity that is no shorter than the weighted average life to maturity of each of the then outstanding Term Loans (provided that any Indebtedness that automatically converts to, or is exchangeable into, notes or other Indebtedness that meet this clause (iv) shall be deemed to satisfy this condition so long as the Borrower irrevocably agrees at the time of the issuance thereof to take all actions necessary to convert or exchange such Indebtedness); (v) the indenture or other applicable agreement governing such Indebtedness (including any related guaranties and any other related documentation) shall not include any financial performance “maintenance” covenants (whether stated as a covenant, default or otherwise, although “incurrence-based” financial tests may be included) or cross-defaults (but may include cross-defaults at the final stated maturity thereof and cross-acceleration); (vi) the terms of such Indebtedness (including, without limitation, all covenants, defaults, guaranties and remedies, but excluding provisions as to interest rate, call protection and redemption premiums), taken as a whole, are no more restrictive or onerous than the terms applicable to the Borrower and its Subsidiaries under this Agreement and the other Loan Documents, (vii) such Indebtedness shall not be recourse to, or guaranteed by, any Person that is not a Credit Party, (viii) prior to the incurrence of such Indebtedness the Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower certifying as not to compliance with the requirements of the preceding clauses (i) through (vii) above and containing calculations, in form and substance reasonably satisfactory to the Administrative Agent with respect to clause (i) above and (ix) to the extent such Indebtedness exceeds exceed $350,000,000, the amount of such excess shall be used to prepay the Loans in accordance with Section 4.5(b)(i)250,000,000; and
(n) additional Indebtedness of the Subsidiaries not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed $75,000,00025,000,000.
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