Borrowings and Guarantees. The Borrower shall not, nor shall they permit any of its Restricted Subsidiaries to, issue, incur, assume, create or have outstanding any Indebtedness for Borrowed Money, or guarantee any Indebtedness for Borrowed Money; provided, however, that the foregoing shall not restrict nor operate to prevent: (a) the Obligations, Hedging Liability, and Funds Transfer, Deposit Account Liability and Foreign LCs of the Borrower and the Subsidiaries; (b) purchase money indebtedness and Capitalized Lease Obligations or other Indebtedness for Borrowed Money financing the acquisition, construction, repair, replacement or improvement of fixed or capital assets of the Restricted Group (excluding Capitalized Restaurant Lease Obligations) in an amount not to exceed the greater of (i) $30,000,000 and (ii) 10.0% of EBITDA of the Restricted Group determined on a Pro Forma Basis for the period of four consecutive fiscal quarters most recently ended for which financial statements are available, in the aggregate at any one time outstanding; (c) obligations of the Restricted Group Companies arising out of interest rate and/or foreign currency swap, exchange, cap, collar, floor, forward, future or option agreement, or any other similar interest rate or currency hedging agreements entered into in the ordinary course of business for the purposes of hedging risk associated with the business of the Restricted Group Companies and not for speculative purposes; (i) endorsement of items for deposit or collection of commercial paper in the ordinary course of business, (ii) indebtedness in respect of netting services, overdraft protections, pooled deposit or sweep accounts and similar arrangements in the ordinary course of business, (iii) repurchase agreements permitted by Section 8.9(d) and (iv) indebtedness in respect of any bankers acceptance, letters of credit, bank guarantees, warehouse receipt or similar facilities entered into in the ordinary course of business; (e) intercompany advances and indebtedness among the Restricted Group Companies permitted by Sections 8.9(f), (g), (k), (m), (n), (o), (p), (s), (aa) and (bb); (f) guarantees of, and other contingent obligations with respect to, indebtedness, obligations, indemnifications, undertakings and products of the Restricted Group Companies otherwise permitted hereunder; provided that any such guarantee of Indebtedness for Borrowed Money that is subordinated to the Obligations shall also be subordinated to the Guarantee of such Subsidiary Guarantor in the same manner as such Indebtedness for Borrowed Money is so subordinated to the Obligations; (g) indebtedness representing any taxes, assessments, fees or governmental charges (including interest, additions to tax and penalties applicable thereto) to the extent (i) such taxes are being contested in good faith and adequate reserves have been provided therefor or (ii) the payment thereof shall not at any time be required to be made in accordance with Section 8.3; (h) (i) (i ) other than an incurrence thereof during the Basket Suspension Period, indebtedness of any Restricted Group Company (including any Person that becomes a Restricted Subsidiary) acquired pursuant to an Acquisition permitted hereunder or indebtedness assumed at the time of an Acquisition permitted hereunder; provided that (A) such indebtedness was not incurred in anticipation or contemplation of such Acquisition, (B) such indebtedness is not guaranteed in any respect by any Restricted Group Company (other than by any such Person or Persons that so becomes a Restricted Subsidiary or Restricted Subsidiaries) except as otherwise permitted hereunder and (C) as of the date of the definitive documentation of such Acquisition, the Borrower shall be in compliance with a Total Leverage Ratio of 3.25:1.00 on a Pro Forma Basis as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date of the definitive documentation of such Acquisition;
Appears in 1 contract
Samples: Credit Agreement (Dave & Buster's Entertainment, Inc.)
Borrowings and Guarantees. The Borrower shall not, nor shall they permit any of its Restricted Subsidiaries to, issue, incur, assume, create or have outstanding any Indebtedness for Borrowed Money, or guarantee any Indebtedness for Borrowed Money; provided, however, that the foregoing shall not restrict nor operate to prevent:
(a) the Obligations, Hedging Liability, and Funds Transfer, Deposit Account Liability and Foreign LCs of the Borrower and the Subsidiaries;
(b) purchase money indebtedness and Capitalized Lease Obligations or other Indebtedness for Borrowed Money financing the acquisition, construction, repair, replacement or improvement of fixed or capital assets of the Restricted Group (excluding Capitalized Restaurant Lease Obligations) in an amount not to exceed the greater of (i) $30,000,000 20,000,000 and (ii) 10.0% of EBITDA of the Restricted Group determined on a Pro Forma Basis for the period of four consecutive fiscal quarters most recently ended for which financial statements are available, in the aggregate at any one time outstanding;
(c) obligations of the Restricted Group Companies arising out of interest rate and/or foreign currency swap, exchange, cap, collar, floor, forward, future or option agreement, or any other similar interest rate or currency hedging agreements entered into in the ordinary course of business for the purposes of hedging risk associated with the business of the Restricted Group Companies and not for speculative purposes;
(i) endorsement of items for deposit or collection of commercial paper in the ordinary course of business, (ii) indebtedness in respect of netting services, overdraft protections, pooled deposit or sweep accounts and similar arrangements in the ordinary course of business, (iii) repurchase agreements permitted by Section 8.9(d) and (iv) indebtedness in respect of any bankers acceptance, letters of credit, bank guarantees, warehouse receipt or similar facilities entered into in the ordinary course of business;
(e) intercompany advances and indebtedness among the Restricted Group Companies permitted by Sections Section 8.9(f), (g), (k), (m), (n), (o), (p), (s), (aa) and (bb);
(f) guarantees of, and other contingent obligations with respect to, indebtedness, obligations, indemnifications, undertakings and products of the Restricted Group Companies otherwise permitted hereunder; provided that any such guarantee of Indebtedness for Borrowed Money that is subordinated to the Obligations shall also be subordinated to the Guarantee of such Subsidiary Guarantor in the same manner as such Indebtedness for Borrowed Money is so subordinated to the Obligations;
(g) indebtedness representing any taxes, assessments, fees or governmental charges (including interest, additions to tax and penalties applicable thereto) to the extent (i) such taxes are being contested in good faith and adequate reserves have been provided therefor or (ii) the payment thereof shall not at any time be required to be made in accordance with Section 8.3;
(h) (i) (i ) other than an incurrence thereof during the Basket Suspension Period, indebtedness of any Restricted Group Company (including any Person that becomes a Restricted Subsidiary) acquired pursuant to an Acquisition permitted hereunder or indebtedness assumed at the time of an Acquisition permitted hereunder; provided that (A) such indebtedness was not incurred in anticipation or contemplation of such Acquisition, (B) such indebtedness is not guaranteed in any respect by any Restricted Group Company (other than by any such Person or Persons that so becomes a Restricted Subsidiary or Restricted Subsidiaries) except as otherwise permitted hereunder and (C) as of the date of the definitive documentation of such Acquisition, the Borrower shall be in compliance with a Total Leverage Ratio of 3.25:1.00 on a Pro Forma Basis as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date of the definitive documentation of such Acquisition;
Appears in 1 contract
Samples: Credit Agreement (Dave & Buster's Entertainment, Inc.)
Borrowings and Guarantees. The Borrower shall not, nor shall they it permit any of its Restricted Subsidiaries other Obligor to, issue, incur, assume, create or have outstanding any Indebtedness or be or become liable as endorser, guarantor, surety or otherwise for Borrowed Moneyany debt, obligation or undertaking of any other Person, or guarantee otherwise agree to provide funds for payment of the obligations of another, or supply funds thereto or invest therein or otherwise assure a creditor of another against loss, or apply for or become liable to the issuer of a letter of credit which supports an obligation of another, or subordinate any Indebtedness for Borrowed Moneyclaim or demand it may have to the claim or demand of any other Person; provided, however, that the foregoing shall not neither restrict nor operate to prevent:
(ai) the Obligations, Hedging Liability, and Funds Transfer, Deposit Account Liability and Foreign LCs Obligations of the Borrower owing to the Administrative Agent and the SubsidiariesLenders (and their Affiliates);
(bii) Subordinated Debt;
(iii) purchase money indebtedness and Capitalized Lease Obligations or other Indebtedness for Borrowed Money financing the acquisition, construction, repair, replacement or improvement of fixed or capital assets of the Restricted Group (excluding Capitalized Restaurant Lease Obligations) Borrower and the other Obligors in an amount not to exceed the greater of (i) $30,000,000 and (ii) 10.0% of EBITDA of the Restricted Group determined on a Pro Forma Basis for the period of four consecutive fiscal quarters most recently ended for which financial statements are available, 250,000 in the aggregate at any one time outstanding;
(civ) obligations Indebtedness incurred as a result of the Restricted Group Companies arising out of interest rate and/or foreign currency swap, exchange, cap, collar, floor, forward, future or option agreement, or any other similar interest rate or currency hedging agreements entered into in the ordinary course of business for the purposes of hedging risk associated with the business of the Restricted Group Companies and not for speculative purposes;
(i) endorsement of items for deposit or collection of commercial paper in the ordinary course of business, (ii) indebtedness in respect of netting services, overdraft protections, pooled deposit or sweep accounts and similar arrangements in the ordinary course of business, (iii) repurchase agreements intercompany advances permitted by Section 8.9(d8.2(c)(v) and (iv) indebtedness in respect of any bankers acceptance, letters of credit, bank guarantees, warehouse receipt or similar facilities entered into in the ordinary course of business;
(e) intercompany advances and indebtedness among the Restricted Group Companies permitted by Sections 8.9(f), (g), (k), (m), (n), (o), (p), (s), (aa) and (bbSection 8.2(c)(vi);
(fv) guarantees ofby any Obligor of obligations of any other Obligor, and other contingent obligations with respect to, indebtedness, obligations, indemnifications, undertakings and products of the Restricted Group Companies otherwise permitted hereunder; provided that any such guarantee of Indebtedness for Borrowed Money that is subordinated to the Obligations shall also be subordinated to the Guarantee of such Subsidiary Guarantor in the same manner as such Indebtedness for Borrowed Money is so subordinated to the Obligations;
(g) indebtedness representing any taxes, assessments, fees or governmental charges (including interest, additions to tax and penalties applicable thereto) each case to the extent (i) such taxes obligation are being contested in good faith and adequate reserves have been provided therefor or (ii) not prohibited by the payment thereof shall not at any time be required to be made in accordance with Section 8.3;terms hereof; and
(hvi) (i) (i ) other than an incurrence thereof during the Basket Suspension Period, indebtedness of any Restricted Group Company (including any Person that becomes owing to a Restricted Subsidiary) acquired pursuant to an seller under a Permitted Acquisition permitted hereunder or indebtedness assumed at the time of an Acquisition permitted hereunder; provided that which constitutes (A) such indebtedness was not incurred in anticipation or contemplation earn outs for which the performance conditions entitling the creditor to the payment of such Acquisitionearn outs have been satisfied in which case the applicable subordination and postponement agreement will permit such payment if at such time no Default or Event of Default has occurred or would result for such payment, and/or (B) such indebtedness is not guaranteed in any respect by any Restricted Group Company (other than by any such Person or Persons that so becomes a Restricted Subsidiary or Restricted Subsidiaries) except as otherwise permitted hereunder and (C) as of the date of the definitive documentation of such Acquisition, the Borrower shall be in compliance with a Total Leverage Ratio of 3.25:1.00 on a Pro Forma Basis as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date of the definitive documentation of such Acquisition;deferred purchase price obligations.
Appears in 1 contract
Samples: Credit Agreement
Borrowings and Guarantees. The Borrower shall not, nor shall they permit any of its Restricted Subsidiaries to, issue, incur, assume, create or have outstanding any Indebtedness for Borrowed Money, or guarantee any Indebtedness for Borrowed Money; provided, however, that the foregoing shall not restrict nor operate to prevent:
(a) the Obligations, Hedging Liability, and Funds Transfer, Deposit Account Liability and Foreign LCs of the Borrower and the Subsidiaries;
(b) purchase money indebtedness and Capitalized Lease Obligations or other Indebtedness for Borrowed Money financing the acquisition, construction, repair, replacement or improvement of fixed or capital assets of the Restricted Group (excluding Capitalized Restaurant Lease Obligations) in an amount not to exceed the greater of (i) $30,000,000 and (ii) 10.0% of EBITDA of the Restricted Group determined on a Pro Forma Basis for the period of four consecutive fiscal quarters most recently ended for which financial statements are available, in the aggregate at any one time outstanding;
(c) obligations of the Restricted Group Companies arising out of interest rate and/or foreign currency swap, exchange, cap, collar, floor, forward, future or option agreement, or any other similar interest rate or currency hedging agreements entered into in the ordinary course of business for the purposes of hedging risk associated with the business of the Restricted Group Companies and not for speculative purposes;
(i) endorsement of items for deposit or collection of commercial paper in the ordinary course of business, (ii) indebtedness in respect of netting services, overdraft protections, pooled deposit or sweep accounts and similar arrangements in the ordinary course of business, (iii) repurchase agreements permitted by Section 8.9(d) and (iv) indebtedness in respect of any bankers acceptance, letters of credit, bank guarantees, warehouse receipt or similar facilities entered into in the ordinary course of business;
(e) intercompany advances and indebtedness among the Restricted Group Companies permitted by Sections Section 8.9(f), (g), (k), (m), (n), (o), (p), (s), (aa) and (bb);
(f) guarantees of, and other contingent obligations with respect to, indebtedness, obligations, indemnifications, undertakings and products of the Restricted Group Companies otherwise permitted hereunder; provided that any such guarantee of Indebtedness for Borrowed Money that is subordinated to the Obligations shall also be subordinated to the Guarantee of such Subsidiary Guarantor in the same manner as such Indebtedness for Borrowed Money is so subordinated to the Obligations;
(g) indebtedness representing any taxes, assessments, fees or governmental charges (including interest, additions to tax and penalties applicable thereto) to the extent (i) such taxes are being contested in good faith and adequate reserves have been provided therefor or (ii) the payment thereof shall not at any time be required to be made in accordance with Section 8.3;
(h) (i) (i ) other than an incurrence thereof during the Basket Suspension Period, indebtedness of any Restricted Group Company (including any Person that becomes a Restricted Subsidiary) acquired pursuant to an Acquisition permitted hereunder or indebtedness assumed at the time of an Acquisition permitted hereunder; provided that (A) such indebtedness was not incurred in anticipation or contemplation of such Acquisition, (B) such indebtedness is not guaranteed in any respect by any Restricted Group Company (other than by any such Person or Persons that so becomes a Restricted Subsidiary or Restricted Subsidiaries) except as otherwise permitted hereunder and (C) as of the date of the definitive documentation of such Acquisition, the Borrower shall be in compliance with a Total Leverage Ratio of 3.25:1.00 on a Pro Forma Basis as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date of the definitive documentation of such Acquisition;
Appears in 1 contract
Samples: Credit Agreement (Dave & Buster's Entertainment, Inc.)
Borrowings and Guarantees. The Borrower shall not, nor shall they it permit any of its Restricted Subsidiaries other Obligor to, issue, incur, assume, create or have outstanding any Indebtedness or be or become liable as endorser, guarantor, surety or otherwise for Borrowed Moneyany debt, obligation or undertaking of any other Person, or guarantee otherwise agree to provide funds for payment of the obligations of another, or supply funds thereto or invest therein or otherwise assure a creditor of another against loss, or apply for or become liable to the issuer of a letter of credit which supports an obligation of another, or subordinate any Indebtedness for Borrowed Moneyclaim or demand it may have to the claim or demand of any other Person; provided, however, that the foregoing shall not neither restrict nor operate to prevent:
(ai) the Obligations, Hedging Liability, and Funds Transfer, Deposit Account Liability and Foreign LCs Obligations of the Borrower owing to the Administrative Agent and the SubsidiariesLenders (and their Affiliates);
(bii) Subordinated Debt;
(iii) purchase money indebtedness and Capitalized Lease Obligations or other Indebtedness for Borrowed Money financing the acquisition, construction, repair, replacement or improvement of fixed or capital assets of the Restricted Group (excluding Capitalized Restaurant Lease Obligations) Borrower and the other Obligors in an amount not to exceed the greater of (i) $30,000,000 and (ii) 10.0% of EBITDA of the Restricted Group determined on a Pro Forma Basis for the period of four consecutive fiscal quarters most recently ended for which financial statements are available, 250,000 in the aggregate at any one time outstanding;
(civ) obligations Indebtedness incurred as a result of the Restricted Group Companies arising out of interest rate and/or foreign currency swap, exchange, cap, collar, floor, forward, future or option agreement, or any other similar interest rate or currency hedging agreements entered into in the ordinary course of business for the purposes of hedging risk associated with the business of the Restricted Group Companies and not for speculative purposes;
(i) endorsement of items for deposit or collection of commercial paper in the ordinary course of business, (ii) indebtedness in respect of netting services, overdraft protections, pooled deposit or sweep accounts and similar arrangements in the ordinary course of business, (iii) repurchase agreements intercompany advances permitted by Section 8.9(d8.2(c)(v) and (iv) indebtedness in respect of any bankers acceptance, letters of credit, bank guarantees, warehouse receipt or similar facilities entered into in the ordinary course of business;
(e) intercompany advances and indebtedness among the Restricted Group Companies permitted by Sections 8.9(f), (g), (k), (m), (n), (o), (p), (s), (aa) and (bbSection 8.2(c)(vi);
(fv) guarantees ofby any Obligor of obligations of any other Obligor, and other contingent obligations with respect to, indebtedness, obligations, indemnifications, undertakings and products of the Restricted Group Companies otherwise permitted hereunder; provided that any such guarantee of Indebtedness for Borrowed Money that is subordinated to the Obligations shall also be subordinated to the Guarantee of such Subsidiary Guarantor in the same manner as such Indebtedness for Borrowed Money is so subordinated to the Obligations;
(g) indebtedness representing any taxes, assessments, fees or governmental charges (including interest, additions to tax and penalties applicable thereto) each case to the extent (i) such taxes obligation are being contested in good faith and adequate reserves have been provided therefor or (ii) not prohibited by the payment thereof shall not at any time be required to be made in accordance with Section 8.3;terms hereof; and
(hvi) (i) (i ) other than an incurrence thereof during the Basket Suspension Period, indebtedness of any Restricted Group Company (including any Person that becomes owing to a Restricted Subsidiary) acquired pursuant to an seller under a Permitted Acquisition permitted hereunder or indebtedness assumed at the time of an Acquisition permitted hereunder; provided that which constitutes
(A) such indebtedness was not incurred in anticipation or contemplation earn outs for which the performance conditions entitling the creditor to the payment of such Acquisitionearn outs have been satisfied in which case the Subordination Agreement will permit such payment if at such time no Default or Event of Default has occurred or would result for such payment, and/or (B) such indebtedness is not guaranteed in any respect by any Restricted Group Company (other than by any such Person or Persons that so becomes a Restricted Subsidiary or Restricted Subsidiaries) except as otherwise permitted hereunder and (C) as of the date of the definitive documentation of such Acquisition, the Borrower shall be in compliance with a Total Leverage Ratio of 3.25:1.00 on a Pro Forma Basis as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date of the definitive documentation of such Acquisition;deferred purchase price obligations.
Appears in 1 contract
Samples: Credit Agreement
Borrowings and Guarantees. The Borrower shall not, nor shall they it permit any of its Restricted Subsidiaries Subsidiary to, issue, incur, assume, create or have outstanding any Indebtedness for Borrowed MoneyIndebtedness, or guarantee be or become liable as endorser, guarantor, surety or otherwise for any Indebtedness debt, obligation or undertaking of any other Person, or otherwise agree to provide funds for Borrowed Moneypayment of the obligations of another, or supply funds thereto or invest therein or otherwise assure a creditor of another against loss, or apply for or become liable to the issuer of a letter of credit which supports an obligation of another; provided, however, that the foregoing shall not restrict nor operate to prevent:
(a) the Obligations, Hedging Liability, and Funds Transfer, Transfer and Deposit Account Liability and Foreign LCs of the Borrower and its Subsidiaries owing to the SubsidiariesAdministrative Agent and the Lenders (and their Affiliates);
(b) purchase money indebtedness and Capitalized Lease Obligations or other Indebtedness for Borrowed Money financing the acquisition, construction, repair, replacement or improvement of fixed or capital assets of the Restricted Group (excluding Capitalized Restaurant Lease Obligations) in an amount not to exceed the greater of (i) $30,000,000 and (ii) 10.0% of EBITDA of the Restricted Group determined on a Pro Forma Basis for the period of four consecutive fiscal quarters most recently ended for which financial statements are available, in the aggregate at any one time outstanding;
(c) obligations of the Restricted Group Companies arising out of interest rate and/or foreign currency swap, exchange, cap, collar, floor, forward, future or option agreement, or any other similar interest rate or currency hedging agreements entered into in the ordinary course of business for the purposes of hedging risk associated with the business of the Restricted Group Companies and not for speculative purposes;
(i) endorsement of items for deposit or collection of commercial paper received in the ordinary course of business, ;
(iic) indebtedness in respect of netting services, overdraft protections, pooled deposit or sweep accounts and similar arrangements repurchase obligations arising in the ordinary course of businessbusiness with respect to U.S. Government Securities;
(d) obligations payable to clearing agencies, (iii) repurchase agreements permitted by Section 8.9(d) and (iv) indebtedness brokers or dealers in respect connection with the purchase or sale of any bankers acceptance, letters of credit, bank guarantees, warehouse receipt or similar facilities entered into securities in the ordinary course of business;
(e) intercompany advances and indebtedness among the Restricted Group Companies permitted by Sections 8.9(f), (g), (k), (m), (n), (o), (p), (s), (aa) and (bb)Indebtedness of Financing Subsidiaries;
(f) guarantees of, and other contingent obligations with in respect to, indebtedness, obligations, indemnifications, undertakings and products of the Restricted Group Companies otherwise permitted hereunder; provided that any such guarantee of Indebtedness for Borrowed Money that is subordinated to the Obligations shall also be subordinated to the Guarantee of such Subsidiary Guarantor in the same manner as such Indebtedness for Borrowed Money is so subordinated to the ObligationsStandard Securitization Undertakings;
(g) indebtedness representing any taxes, assessments, fees or governmental charges (including interest, additions to tax and penalties applicable thereto) to the extent Unsecured Longer-Term Indebtedness so long as (i) such taxes are being contested in good faith no Default or Event of Default exists at the time of, or after giving effect to, the incurrence thereof, and adequate reserves have been provided therefor or (ii) the payment thereof shall aggregate amount of such Indebtedness, taken together with other then-outstanding Indebtedness, does not at any time be exceed the amount required to be made in accordance comply with the provisions of Section 8.38.24(b) hereof (Asset Coverage Ratio);
(h) (i) (i ) other than an incurrence thereof during Indebtedness consisting of purchase money indebtedness or Capitalized Lease Obligations incurred in the Basket Suspension Period, indebtedness ordinary course of any Restricted Group Company (including any Person that becomes a Restricted Subsidiary) acquired pursuant business to an Acquisition permitted hereunder or indebtedness assumed at the time of an Acquisition permitted hereunderfinance equipment and fixtures; provided that (Ai) such indebtedness was Indebtedness does not incurred exceed $1,000,000 in anticipation or contemplation the aggregate at any time outstanding and (ii) the aggregate amount of such AcquisitionIndebtedness, (Btaken together with other then-outstanding Indebtedness, does not exceed the amount required to comply with the provisions of Section 8.24(b) such indebtedness is not guaranteed in any respect by any Restricted Group Company (other than by any such Person or Persons that so becomes a Restricted Subsidiary or Restricted Subsidiaries) except as otherwise permitted hereunder and (C) as of the date of the definitive documentation of such Acquisition, the Borrower shall be in compliance with a Total Leverage Ratio of 3.25:1.00 on a Pro Forma Basis as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date of the definitive documentation of such Acquisition;hereof; and
Appears in 1 contract
Borrowings and Guarantees. The Borrower shall not, nor shall they permit any of its Restricted Subsidiaries to, issue, incur, assume, create or have outstanding any Indebtedness for Borrowed Money, or guarantee any Indebtedness for Borrowed Money; provided, however, that the foregoing shall not restrict nor operate to prevent:
(a) the Obligations, Hedging Liability, and Funds Transfer, Deposit Account Liability and Foreign LCs of the Borrower and the Subsidiaries;
(b) purchase money indebtedness and Capitalized Lease Obligations or other Indebtedness for Borrowed Money financing the acquisition, construction, repair, replacement or improvement of fixed or capital assets of the Restricted Group (excluding Capitalized Restaurant Lease Obligations) in an amount not to exceed the greater of (i) $30,000,000 and (ii) 10.0% of EBITDA of the Restricted Group determined on a Pro Forma Basis for the period of four consecutive fiscal quarters most recently ended for which financial statements are available, in the aggregate at any one time outstanding;
(c) obligations of the Restricted Group Companies arising out of interest rate and/or foreign currency swap, exchange, cap, collar, floor, forward, future or option agreement, or any other similar interest rate or currency hedging agreements entered into in the ordinary course of business for the purposes of hedging risk associated with the business of the Restricted Group Companies and not for speculative purposes;
(i) endorsement of items for deposit or collection of commercial paper in the ordinary course of business, (ii) indebtedness in respect of netting services, overdraft protections, pooled deposit or sweep accounts and similar arrangements in the ordinary course of business, (iii) repurchase agreements permitted by Section 8.9(d) and (iv) indebtedness in respect of any bankers acceptance, letters of credit, bank guarantees, warehouse receipt or similar facilities entered into in the ordinary course of business;
(e) intercompany advances and indebtedness among the Restricted Group Companies permitted by Sections 8.9(f), (g), (k), (m), (n), (o), (p), (s), (aa) and (bb);
(f) guarantees of, and other contingent obligations with respect to, indebtedness, obligations, indemnifications, undertakings and products of the Restricted Group Companies otherwise permitted hereunder; provided that any such guarantee of Indebtedness for Borrowed Money that is subordinated to the Obligations shall also be subordinated to the Guarantee of such Subsidiary Guarantor in the same manner as such Indebtedness for Borrowed Money is so subordinated to the Obligations;
(g) indebtedness representing any taxes, assessments, fees or governmental charges (including interest, additions to tax and penalties applicable thereto) to the extent (i) such taxes are being contested in good faith and adequate reserves have been provided therefor or (ii) the payment thereof shall not at any time be required to be made in accordance with Section 8.3;
(h) (i) (i ) other than an incurrence thereof during the Basket Suspension Period, indebtedness of any Restricted Group Company (including any Person that becomes a Restricted Subsidiary) acquired pursuant to an Acquisition permitted hereunder or indebtedness assumed at the time of an Acquisition permitted hereunder; provided that (A) such indebtedness was not incurred in anticipation or contemplation of such Acquisition, (B) such indebtedness is not guaranteed in any respect by any Restricted Group Company (other than by any such Person or Persons that so becomes a Restricted Subsidiary or Restricted Subsidiaries) except as otherwise permitted hereunder and (C) as of the date of the definitive documentation of such Acquisition, the Borrower shall be in compliance with a Total Leverage Ratio of 3.25:1.00 on a Pro Forma Basis as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date of the definitive documentation of such Acquisition; (ii) other than an incurrence thereof during the Basket Suspension Period, senior indebtedness, senior subordinated indebtedness and Subordinated Debt (including Seller Debt) of the Borrower and/or any of its Domestic Subsidiaries (including any Person that becomes a Restricted Subsidiary, but excluding any Disregarded Domestic Person) incurred to finance an Acquisition permitted hereunder; provided that as of the date of the definitive documentation of such Acquisition, the Borrower shall be in compliance with a Total Leverage Ratio of 3.25:1.00 on a Pro Forma Basis as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date of the definitive documentation of such Acquisition; and (iii) any Permitted Refinancing of indebtedness set forth in clauses (i) and (ii) above;
(i) (i) indebtedness of the Restricted Group Companies with respect to the performance of bids, tenders, trade contracts, governmental contracts and leases (other than, in each case, indebtedness representing borrowed money), performance bonds, completion guarantees, statutory obligations, stay or surety bonds, appeal bonds or customs bonds and obligations of like nature (including those to secure health, safety and environmental obligations), (ii) obligations in respect of letters of credit, bank guarantees or similar instruments in support of the items set forth in clause (i), in each case in the ordinary course of business and (iii) indebtedness of the Restricted Group Companies in connection with the enforcement of rights or claims of the Borrower or any Restricted Subsidiary in connection with judgments that do not result in an Event of Default;
(j) indebtedness of the Restricted Group Companies which may be deemed to exist in accordance with GAAP in connection with agreements providing for indemnification, Earnout Payments, incentive, non-compete, consulting, deferred compensation, purchase price adjustments and similar obligations in connection with the acquisition or sale, transfer, lease or other disposition of assets in accordance with the requirements of this Agreement, including Acquisitions permitted hereunder, so long as any such obligations are those of the Person making the respective acquisition or sale, and are not guaranteed by any other Person except as otherwise permitted hereunder;
(k) other than an incurrence thereof during the Basket Suspension Period, indebtedness of the Restricted Group Companies not exceeding the greater of (i) $20,000,000 and (ii) 10.0% of EBITDA of the Restricted Group Companies determined on a Pro Forma Basis for the period of four consecutive fiscal quarters most recently ended for which financial statements are available, in aggregate principal amount at any one time outstanding, which indebtedness may be secured to the extent permitted under Section 8.8;
(l) the principal amount of indebtedness not to exceed the amounts set forth on Schedule 8.7 and any Permitted Refinancing thereof and renewals and extensions thereof;
(m) indebtedness incurred in the ordinary course of business in connection with (i) the financing of insurance premiums or (ii) take-or-pay obligations in supply or trade arrangements;
(i) other than an incurrence thereof during the Basket Suspension Period, subject to satisfaction of the Incurrence Test described below, unsecured senior indebtedness, unsecured senior subordinated indebtedness and unsecured Subordinated Debt (including Seller Debt) (including, without limitation, guarantees thereof meeting the requirements set forth in the proviso to Section 8.7(f)) and (ii) any Permitted Refinancing thereof. As used in this Section 8.7(n), “Incurrence Test” means all of the following conditions shall have been satisfied after giving effect to the incurrence of any such indebtedness: (i) no Default or Event of Default shall exist as of the date of the incurrence of such indebtedness, including with respect to the financial covenants contained in Section 8.22 on a Pro Forma Basis and (ii) the Borrower shall have delivered to the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that the Borrower would have a Total Leverage Ratio on a Pro Forma Basis of not greater than 3.50:1.00;
Appears in 1 contract
Samples: Credit Agreement (Dave & Buster's Entertainment, Inc.)
Borrowings and Guarantees. The Borrower shall not, nor shall they it permit any of its Restricted Subsidiaries to, issue, incur, assume, create or have outstanding any Indebtedness for Borrowed Money, or guarantee any Indebtedness for Borrowed Money; provided, however, that the foregoing shall not restrict nor operate to prevent:
(a) the Obligations, Hedging Liability, and Funds Transfer, Deposit Account Liability and Foreign LCs of the Borrower and the Subsidiaries;
(b) purchase money indebtedness and Capitalized Lease Obligations or other Indebtedness for Borrowed Money financing the acquisition, construction, repair, replacement or improvement of fixed or capital assets of the Restricted Group (excluding Capitalized Restaurant Lease Obligations) Borrower and the Subsidiaries in an amount not to exceed the greater of (i) $30,000,000 15,000,000 and (ii) 10.0% of EBITDA of the Restricted Group Borrower and its Subsidiaries determined on a Pro Forma Basis for the period of four consecutive fiscal quarters most recently ended for which financial statements are available, in the aggregate at any one time outstanding;
(c) obligations of the Restricted Group Companies Borrower or any Subsidiary Guarantor arising out of interest rate and/or foreign currency swap, exchange, cap, collar, floor, forward, future or option agreement, or any other similar interest rate or currency hedging agreements entered into in the ordinary course of business for the purposes of hedging risk associated with the business of the Restricted Group Companies Borrower and the Subsidiaries and not for speculative purposes;
(i) endorsement of items for deposit or collection of commercial paper in the ordinary course of business, (ii) indebtedness in respect of netting services, overdraft protections, pooled deposit or sweep accounts and similar arrangements in the ordinary course of business, (iii) repurchase agreements permitted by Section 8.9(d) and (iv) indebtedness in respect of any bankers acceptance, letters of credit, bank guarantees, warehouse receipt or similar facilities entered into in the ordinary course of business;
(e) intercompany advances and indebtedness among Holdings, the Restricted Group Companies Borrower and its Subsidiaries permitted by Sections Section 8.9(f), (g), (k), (m), (n), (o), (p), (s), (aa) and (bb);
(f) guarantees of, and other contingent obligations with respect to, indebtedness, obligations, indemnifications, undertakings and products of the Restricted Group Companies Borrower and its Subsidiaries otherwise permitted hereunder; provided that any such guarantee of Indebtedness for Borrowed Money that is subordinated to the Obligations shall also be subordinated to the Guarantee of such Subsidiary Guarantor in the same manner as such Indebtedness for Borrowed Money is so subordinated to the Obligations;
(g) indebtedness representing any taxes, assessments, fees or governmental charges (including interest, additions to tax and penalties applicable thereto) to the extent (i) such taxes are being contested in good faith and adequate reserves have been provided therefor or (ii) the payment thereof shall not at any time be required to be made in accordance with Section 8.3;
(h) (i) (i ) other than an incurrence thereof during the Basket Suspension Period, indebtedness of the Borrower and/or any Restricted Group Company of its Subsidiaries (including any Person that becomes a Restricted Subsidiary) acquired pursuant to an Acquisition permitted hereunder or indebtedness assumed at the time of an Acquisition permitted hereunder; provided that (A) such indebtedness was not incurred in anticipation or contemplation of such Acquisition, (B) such indebtedness is not guaranteed in any respect by the Borrower or any Restricted Group Company Subsidiary (other than by any such Person or Persons that so becomes a Restricted Subsidiary or Restricted Subsidiaries) except as otherwise permitted hereunder and (C) as of the date of the definitive documentation of after giving effect to such Acquisitionindebtedness, the Borrower shall be in compliance with a Total Leverage Ratio of 3.25:1.00 3.60:1.00 on a Pro Forma Basis as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date of the definitive documentation of such Acquisition;
(ii) senior indebtedness, senior subordinated indebtedness and Subordinated Debt (including Seller Debt) of the Borrower and/or any of its Domestic Subsidiaries (including any Person that becomes a Subsidiary, but excluding any Disregarded Domestic Person) incurred to finance an Acquisition permitted hereunder; provided that after giving effect to such indebtedness, the Borrower shall be in compliance with a Total Leverage Ratio of 3.60:1.00 on a Pro Forma Basis as of the last day of the most recently ended fiscal quarter for which financial statements are available prior to the date of the definitive documentation of such Acquisition;
(iii) any Permitted Refinancing of indebtedness set forth in clauses (i) and (ii) above;
(i) (i) indebtedness of the Borrower and any of its Subsidiaries with respect to the performance of bids, tenders, trade contracts, governmental contracts and leases (other than, in each case, indebtedness representing borrowed money), performance bonds, completion guarantees, statutory obligations, stay or surety bonds, appeal bonds or customs bonds and obligations of like nature (including those to secure health, safety and environmental obligations), (ii) obligations in respect of letters of credit, bank guarantees or similar instruments in support of the items set forth in clause (i), in each case in the ordinary course of business and (iii) indebtedness of the Borrower and any of its Subsidiaries in connection with the enforcement of rights or claims of the Borrower or any Subsidiary in connection with judgments that do not result in an Event of Default;
(j) indebtedness of the Borrower or any of its Subsidiaries which may be deemed to exist in accordance with GAAP in connection with agreements providing for indemnification, Earnout Payments, incentive, non-compete, consulting, deferred compensation, purchase price adjustments and similar obligations in connection with the acquisition or sale, transfer, lease or other disposition of assets in accordance with the requirements of this Agreement, including Acquisitions permitted hereunder, so long as any such obligations are those of the Person making the respective acquisition or sale, and are not guaranteed by any other Person except as otherwise permitted hereunder;
(k) indebtedness of the Borrower and its Subsidiaries not exceeding the greater of (i) $20,000,000 and (ii) 15.0% of EBITDA of the Borrower and its Subsidiaries determined on a Pro Forma Basis for the period of four consecutive fiscal quarters most recently ended for which financial statements are available, in aggregate principal amount at any one time outstanding, which indebtedness may be secured to the extent permitted under Section 8.8;
(l) the principal amount of indebtedness not to exceed the amounts set forth on Schedule 8.7 and any Permitted Refinancing thereof and renewals and extensions thereof;
(m) indebtedness incurred in the ordinary course of business in connection with (i) the financing of insurance premiums or (ii) take-or-pay obligations in supply or trade arrangements;
(n) (i) subject to satisfaction of the Incurrence Test described below or such indebtedness not exceeding an aggregate principal amount of $30,000,000 at any time outstanding, unsecured senior indebtedness, unsecured senior subordinated indebtedness and unsecured Subordinated Debt (including Seller Debt) (including, without limitation, guarantees thereof meeting the requirements set forth in the proviso to Section 8.7(f)) and (ii) any Permitted Refinancing thereof. As used in this Section 8.7(n), “Incurrence Test” means all of the following conditions shall have been satisfied after giving effect to the incurrence of any such indebtedness: (i) no Default or Event of Default shall exist as of the date of the incurrence of such indebtedness, including with respect to the then-applicable financial covenant contained in Section 8.22 hereof on a Pro Forma Basis and (ii) the Borrower shall have delivered to the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that the Borrower would have a Total Leverage Ratio on a Pro Forma Basis of not greater than the lesser of (A) 3.60:1.00 and (B) to the extent then-applicable, the then maximum Total Leverage Ratio permitted by Section 8.22;
Appears in 1 contract
Samples: Credit Agreement (Dave & Buster's Entertainment, Inc.)
