Indebtedness and Preferred Stock. Directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to any Indebtedness, and the Borrower will not issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock except for: (a) the incurrence by the Borrower (and the Guarantee thereof by the Subsidiary Guarantors) of the Indebtedness created (and the Reimbursement Obligations with respect to Letters of Credit issued) under the Loan Documents; (b) Indebtedness of the Borrower or any Subsidiary pursuant to a Credit Support Facility; (c) Indebtedness of the Borrower and its Restricted Subsidiaries set forth on Schedule 6.01(c) (Funding); (d) the incurrence by the Borrower and its Restricted Subsidiaries (other than the NY Real Property Subsidiaries) of Additional Intercreditor Indebtedness; provided that (i) no Default or Event of Default exists immediately prior to, or would exist immediately after giving effect to, the incurrence of any such Indebtedness and (ii) the Borrower shall be in compliance with the Financial Covenants for the Borrower’s most recently ended Test Period for which financial statements are publicly available immediately preceding the date on which any such Indebtedness is incurred on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if such additional Indebtedness (and any other Indebtedness incurred during such Test Period or from the end of such Test Period through the date on which such calculation is made) had been incurred at the beginning of the applicable Test Period and was outstanding on such calculation date; provided, further that if such Additional Intercreditor Indebtedness takes the form of a revolving credit facility, the tests in the proviso above shall be met on the date such revolving loan commitments become effective, assuming the incurrence of the full committed amount of such revolving credit facility; (e) the incurrence by (i) the Borrower of Indebtedness in respect of the Senior Notes, and if applicable, any Funds Availability Indebtedness and (ii) the Subsidiary Guarantors of Indebtedness in respect of the Senior Note Guarantees and if applicable, any Funds Availability Indebtedness Guarantees; (f) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness represented by Attributable Debt, Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of design, construction, installation, repair, restoration, expansion or improvement or lease of property (real or personal), plant or equipment used in the business of the Borrower or any of its Restricted Subsidiaries or incurred within 270 days after any of the foregoing, in an aggregate principal amount, including (without duplication) all Permitted Refinancing Indebtedness incurred to refund, modify, extend, renew, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (f), not to exceed $600,000,000 at any time outstanding; (g) the incurrence by the Borrower or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance, replace, defease, modify, extend, renew or discharge Indebtedness (other than intercompany Indebtedness) that was permitted by this Agreement to be incurred under clauses (b), (c), (e), (f), (o), (p) and (x) of this Section 6.01; provided, however, that with respect to the NY Real Property Subsidiaries, such Permitted Refinancing Indebtedness shall be permitted only with respect to clauses (b), (c), (e), (f), (o) and (x) of this Section 6.01; (h) the incurrence by the Borrower and the Restricted Subsidiaries of unsecured intercompany Indebtedness that constitutes an Investment permitted under Sections 6.05(g) or 6.05(j); provided, however, that (i) if the Borrower or any Subsidiary Guarantor is the obligor on such Indebtedness and the payee is not the Borrower or a Subsidiary that is a Subsidiary Guarantor, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Secured Obligations (which subordination may be pursuant to an Intercompany Debt Subordination Agreement or any other agreement containing terms satisfactory to the Administrative Agent and the Collateral Agent executed and delivered by both the applicable borrower and lender); and (ii)(A) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Borrower or a Restricted Subsidiary and (B) any sale or other transfer of any such Indebtedness to a Person that is not either the Borrower or a Restricted Subsidiary will be deemed, in each case, to constitute an incurrence of such Indebtedness by the Borrower or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (h); (i) the issuance by any of the Borrower’s Restricted Subsidiaries to the Borrower or to any of its other Restricted Subsidiaries of shares of preferred stock; provided, however, that (i) any subsequent issuance or transfer of Equity Interests that results in any such preferred stock being held by a Person other than the Borrower or a Restricted Subsidiary and (ii) any sale or other transfer of any such preferred stock to a Person that is not either the Borrower or a Restricted Subsidiary will be deemed, in each case, to constitute an issuance of such preferred stock by such Restricted Subsidiary that was not permitted by this clause (i); (j) the incurrence by the Borrower or any of its Restricted Subsidiaries of Commodity Hedging Obligations and Interest Rate/Currency Hedging Obligations, provided, however, that the NY Real Property Subsidiaries shall not incur Commodity Hedging Obligations or Interest Rate/Currency Hedging Obligations other than pursuant to FERC 205 Contracts; (k) the Guarantee by the Borrower or any of the Subsidiary Guarantors of Indebtedness of the Borrower or a Restricted Subsidiary that was permitted to be incurred by another provision of this Section 6.01 (other than in respect of self insurance); provided that, (i) in each such case, if the Indebtedness being guaranteed is subordinated to the Secured Obligations hereunder, then the Guarantee shall be subordinated to the same extent as the Indebtedness guaranteed and (ii) in the case of Guarantees of Indebtedness incurred pursuant to Section 6.01(w), such Guarantees shall be subordinated on terms at least as restrictive as the subordination terms of the Senior Note Guarantees; (l) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness arising from the honoring by a bank or other Financial Institution of a check, draft or similar instrument (except in the case of daylight overdrafts) inadvertently drawn against insufficient funds, so long as such Indebtedness is discharged within five Business Days; (m) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness in respect of, bankers’ acceptances and performance bonds, bid bonds, appeal bonds, completion guarantees, bank guarantees, letters of credit, warehouse receipts and surety bonds provided by the Borrower or a Restricted Subsidiary in the ordinary course of business; (n) the incurrence of Indebtedness that may be deemed to arise as a result of agreements of the Borrower or any Restricted Subsidiary providing for indemnification, adjustment of purchase price (including earn outs) or any similar obligations, in each case, incurred in connection with any Permitted Acquisition or Investment permitted pursuant to Sections 6.05(g), 6.05(h) and 6.05(j) or Asset Sale or other disposition not prohibited hereunder; provided that (i) in the case of any such Asset Sale or disposition, the aggregate maximum liability associated with such provisions may not exceed the gross proceeds (including non-cash proceeds) of such disposition and (ii) this clause (n) shall only apply to NY Real Property Subsidiaries in respect of Indebtedness constituting indemnification obligations arising from Asset Sales permitted under Section 6.04(b); (o) the incurrence of Indebtedness of a Person or Indebtedness attaching to assets of a Person that, in either case, becomes a Restricted Subsidiary or Indebtedness attaching to assets that are acquired by the Borrower or any Restricted Subsidiary, in each case after the Funds Availability Date as the result of a Permitted Acquisition; provided that (i) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof, (ii) such Indebtedness is not guaranteed in any respect by the Borrower or any Restricted Subsidiary (other than any such Person that so becomes a Restricted Subsidiary) and (iii)(A) the Capital Stock of such Person are pledged to the Collateral Agent to the extent required under Section 5.10 and (B) such Person executes a supplement to each of the Security Documents (or alternative guarantee and security arrangements in relation to the Secured Obligations) to the extent required under Section 5.10; (p) the incurrence by the Borrower (other than the NY Real Property Subsidiaries) of Indebtedness to finance a Permitted Acquisition; provided that (i) such Indebtedness is not guaranteed in any respect by any Person other than the Person acquired (the “acquired Person”) as a result of such Permitted Acquisition, and (ii)(A) the Borrower pledges the Capital Stock of such acquired Person to the Collateral Agent to the extent required under Section 5.10 and (B) such acquired Person executes a supplement to the Security Documents (or alternative guarantee and security arrangements in relation to the Secured Obligations) to the extent required under Section 5.10; (q) the incurrence by the Borrower or any Restricted Subsidiary of Indebtedness consisting of (i) obligations to pay insurance premiums, (ii) self-insurance obligations or (iii) take-or-pay obligations contained in supply agreements, in each case arising in the ordinary course of business and not in connection with the borrowing of money or Hedging Obligations. (r) [Intentionally omitted] (s) Guarantee obligations in respect of any Investment permitted pursuant to Sections 6.05(a), 6.05(c), 6.05(d) (to the extent existing on the Funds Availability Date), 6.05(e), 6.05(g), 6.05(h), 6.05(j), 6.05(o), 6.05(p) and 6.05(q); (t) Cash Management Obligations; (u) Indebtedness representing (i) workers compensation claims, (ii) health, disability or other employee benefits and (iii) deferred compensation to employees, consultants or independent contractors of the Borrower and the Restricted Subsidiaries incurred in the ordinary course of business; (v) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to current or former officers, managers, consultants, directors and employees (or their respective spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees) to finance the purchase or redemption of Capital Stock or Capital Stock Equivalents of the Borrower permitted by Section 6.06(b); (w) additional unsecured Indebtedness; provided that (i) such Indebtedness matures after, and does not require any scheduled amortization or other scheduled payments of principal prior to, the Revolving Credit Maturity Date; (ii) such Indebtedness is incurred by the Borrower; (iii) both immediately prior and after giving effect to the incurrence thereof, (A) no Default or Event of Default shall exist or result therefrom and (B) the Borrower and its Restricted Subsidiaries shall be in pro forma compliance with the Financial Covenants and (iv) to the extent that such incurrence of additional unsecured Indebtedness exceeds an aggregate principal amount of $20,000,000, the Borrower delivers a certificate of a Financial Officer to the Administrative Agent at least 2 Business Days prior to the incurrence of such unsecured Indebtedness stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirements of this clause (w); (x) the incurrence by the Borrower or any Restricted Subsidiary of Environmental CapEx Debt or Necessary CapEx Debt (which Indebtedness may be secured to the extent provided in Section 6.02(bb)); provided that, prior to the incurrence of any such Environmental CapEx Debt or Necessary CapEx Debt, the Borrower shall deliver to the Administrative Agent an officers’ certificate by a Financial Officer designating such Indebtedness as Environmental CapEx Debt or Necessary CapEx Debt, as applicable; (y) Indebtedness incurred by the Borrower and its Restricted Subsidiaries in good faith to invest in nuclear decommissioning trusts or to comply with decommissioning agreements; and (z) all premiums (if any), interest (including post-petition interest), fees, expenses, charges, and additional or contingent interest on obligations described in clauses (a) through (y) above. For purposes of determining compliance with this Section 6.01, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Indebtedness described in clauses (a) through (z) above, the Borrower shall, in its reasonable discretion, classify and reclassify or later divide, classify or reclassify such item of Indebtedness (or any portion thereof) and will only be required to include the amount and type of such Indebtedness in one or more of the above clauses.
Appears in 3 contracts
Samples: Credit Agreement (Enexus Energy CORP), Credit Agreement (Enexus Energy CORP), Credit Agreement (Entergy Corp /De/)
Indebtedness and Preferred Stock. Directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to any Indebtedness, and the The Borrower will not issue any Disqualified Stock not, and will not permit any of its Restricted Subsidiaries to, create, incur, assume or suffer to issue exist any shares of preferred stock except forIndebtedness, except:
(a) the incurrence by the Borrower (and the Guarantee thereof by the Subsidiary Guarantors) of the Indebtedness created (and the Reimbursement Obligations with respect pursuant to Letters of Credit issued) under the Loan Documents;
(b) Indebtedness of the Borrower and its Subsidiaries existing on the date hereof and set forth on Schedule 7.1 and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (immediately prior to giving effect to such extension, renewal or any Subsidiary pursuant to a Credit Support Facilityreplacement) or shorten the maturity or the weighted average life thereof;
(c) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations, and its Restricted Subsidiaries set forth any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on Schedule 6.01(c) (Funding);
(d) any such assets prior to the incurrence by acquisition thereof; provided, that such Indebtedness is incurred prior to or within 180 days after such acquisition or the Borrower completion of such construction or improvements or extensions, renewals, and its Restricted Subsidiaries (other than the NY Real Property Subsidiaries) of Additional Intercreditor Indebtedness; provided that (i) no Default or Event of Default exists immediately prior to, or would exist immediately after giving effect to, the incurrence replacements of any such Indebtedness and that do not increase the outstanding principal amount thereof (iiimmediately prior to giving effect to such extension, renewal or replacement) or shorten the Borrower shall be in compliance with maturity or the Financial Covenants for weighted average life thereof; provided further, that the Borrower’s most recently ended Test Period for which financial statements are publicly available immediately preceding the date on which any such Indebtedness is incurred on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if such additional Indebtedness (and any other Indebtedness incurred during such Test Period or from the end of such Test Period through the date on which such calculation is made) had been incurred at the beginning of the applicable Test Period and was outstanding on such calculation date; provided, further that if such Additional Intercreditor Indebtedness takes the form of a revolving credit facility, the tests in the proviso above shall be met on the date such revolving loan commitments become effective, assuming the incurrence of the full committed aggregate principal amount of such revolving credit facility;
(e) the incurrence by (i) the Borrower of Indebtedness in respect of the Senior Notes, and if applicable, any Funds Availability Indebtedness and (ii) the Subsidiary Guarantors of Indebtedness in respect of the Senior Note Guarantees and if applicable, any Funds Availability Indebtedness Guarantees;
(f) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness represented by Attributable Debt, Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of design, construction, installation, repair, restoration, expansion or improvement or lease of property (real or personal), plant or equipment used in the business of the Borrower or any of its Restricted Subsidiaries or incurred within 270 days after any of the foregoing, in an aggregate principal amount, including (without duplication) all Permitted Refinancing Indebtedness incurred to refund, modify, extend, renew, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (f), does not to exceed $600,000,000 10,000,000 at any time outstanding;
(gd) Indebtedness of the incurrence Borrower owing to any Subsidiary Loan Party and of any Subsidiary owing to the Borrower or any other Subsidiary Loan Party;
(e) Guarantees (i) by the Borrower or any Subsidiary Loan Party of its Restricted Subsidiaries Indebtedness of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance, replace, defease, modify, extend, renew or discharge Indebtedness (any other than intercompany Indebtedness) that was permitted Loan Party and by this Agreement to be incurred under clauses (b), (c), (e), (f), (o), (p) and (x) of this Section 6.01; provided, however, that with respect to the NY Real Property Subsidiaries, such Permitted Refinancing Indebtedness shall be permitted only with respect to clauses (b), (c), (e), (f), (o) and (x) of this Section 6.01;
(h) the incurrence by the Borrower and the Restricted Subsidiaries of unsecured intercompany Indebtedness that constitutes an Investment permitted under Sections 6.05(g) or 6.05(j); provided, however, that (i) if the Borrower or any Subsidiary Guarantor is the obligor on such Indebtedness and the payee is not the Borrower or a Subsidiary that is a Subsidiary Guarantor, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Secured Obligations (which subordination may be pursuant to an Intercompany Debt Subordination Agreement or any other agreement containing terms satisfactory to the Administrative Agent and the Collateral Agent executed and delivered by both the applicable borrower and lender); and (ii)(A) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Borrower or a Restricted Subsidiary and (B) any sale or other transfer of any such Indebtedness to a Person that is not either the Borrower or a Restricted Subsidiary will be deemed, in each case, to constitute an incurrence of such Indebtedness by the Borrower or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (h);
(i) the issuance by any of the Borrower’s Restricted Subsidiaries to the Borrower or to any of its other Restricted Subsidiaries of shares of preferred stock; provided, however, that (i) any subsequent issuance or transfer of Equity Interests that results in any such preferred stock being held by a Person other than the Borrower or a Restricted Subsidiary and (ii) any sale or other transfer of any such preferred stock to a Person that is not either the Borrower or a Restricted Subsidiary will be deemed, in each case, to constitute an issuance of such preferred stock by such Restricted Subsidiary that was not permitted by this clause (i);
(j) the incurrence by the Borrower or any of its Restricted Subsidiaries of Commodity Hedging Obligations and Interest Rate/Currency Hedging Obligations, provided, however, that the NY Real Property Subsidiaries shall not incur Commodity Hedging Obligations or Interest Rate/Currency Hedging Obligations other than pursuant to FERC 205 Contracts;
(k) the Guarantee by the Borrower or any of the Subsidiary Guarantors of Indebtedness of the Borrower or a Restricted any Subsidiary that was permitted to be incurred by another provision of this Section 6.01 (other than in respect of self insurance); provided that, (i) in each such case, if the Indebtedness being guaranteed is subordinated to the Secured Obligations hereunder, then the Guarantee shall be subordinated to the same extent as the Indebtedness guaranteed Loan Party and (ii) by any Loan Party of Indebtedness of any Subsidiary that is not a Loan Party to the extent constituting an Investment permitted pursuant to Section 7.4;
(f) Indebtedness of any Person which becomes a Subsidiary after the date of this Agreement; provided, that such Indebtedness exists at the time that such Person becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary and the aggregate principal amount of such Indebtedness permitted under this Section 7.1(f) shall not exceed $5,000,000 outstanding at any time;
(g) Indebtedness in respect of Hedging Obligations permitted by Section 7.10; and
(h) other unsecured Indebtedness of the Borrower or its Subsidiaries in an aggregate principal amount not to exceed $5,000,000 at any time outstanding. The Borrower will not, and will not permit any Subsidiary to, issue any preferred stock or other preferred equity interests that (i) matures or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise, (ii) is or may become redeemable or repurchaseable by the Borrower or such Subsidiary at the option of the holder thereof, in whole or in part or (iii) is convertible or exchangeable at the option of the holder thereof for Indebtedness or preferred stock or any other preferred equity interests described in this paragraph, on or prior to, in the case of Guarantees of Indebtedness incurred pursuant to Section 6.01(w), such Guarantees shall be subordinated on terms at least as restrictive as the subordination terms of the Senior Note Guarantees;
(l) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness arising from the honoring by a bank or other Financial Institution of a check, draft or similar instrument (except in the case of daylight overdrafts) inadvertently drawn against insufficient funds, so long as such Indebtedness is discharged within five Business Days;
(m) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness in respect of, bankers’ acceptances and performance bonds, bid bonds, appeal bonds, completion guarantees, bank guarantees, letters of credit, warehouse receipts and surety bonds provided by the Borrower or a Restricted Subsidiary in the ordinary course of business;
(n) the incurrence of Indebtedness that may be deemed to arise as a result of agreements of the Borrower or any Restricted Subsidiary providing for indemnification, adjustment of purchase price (including earn outs) or any similar obligations, in each case, incurred in connection with any Permitted Acquisition or Investment permitted pursuant to Sections 6.05(g), 6.05(h) and 6.05(j) or Asset Sale or other disposition not prohibited hereunder; provided that clause (i) in the case of any such Asset Sale or disposition, the aggregate maximum liability associated with such provisions may not exceed the gross proceeds (including non-cash proceeds) of such disposition and (ii) this clause (n) shall only apply to NY Real Property Subsidiaries in respect of Indebtedness constituting indemnification obligations arising from Asset Sales permitted under Section 6.04(b);
(o) the incurrence of Indebtedness of a Person or Indebtedness attaching to assets of a Person that, in either case, becomes a Restricted Subsidiary or Indebtedness attaching to assets that are acquired by the Borrower or any Restricted Subsidiary, in each case after the Funds Availability Date as the result of a Permitted Acquisition; provided that (i) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof, (ii) such Indebtedness is not guaranteed in any respect by the Borrower or any Restricted Subsidiary (other than any such Person that so becomes a Restricted Subsidiary) and (iii)(A) the Capital Stock of such Person are pledged to the Collateral Agent to the extent required under Section 5.10 and (B) such Person executes a supplement to each of the Security Documents (or alternative guarantee and security arrangements in relation to the Secured Obligations) to the extent required under Section 5.10;
(p) the incurrence by the Borrower (other than the NY Real Property Subsidiaries) of Indebtedness to finance a Permitted Acquisition; provided that (i) such Indebtedness is not guaranteed in any respect by any Person other than the Person acquired (the “acquired Person”) as a result of such Permitted Acquisition, and (ii)(A) the Borrower pledges the Capital Stock of such acquired Person to the Collateral Agent to the extent required under Section 5.10 and (B) such acquired Person executes a supplement to the Security Documents (or alternative guarantee and security arrangements in relation to the Secured Obligations) to the extent required under Section 5.10;
(q) the incurrence by the Borrower or any Restricted Subsidiary of Indebtedness consisting of (i) obligations to pay insurance premiums, (ii) self-insurance obligations or (iii) take-or-pay obligations contained in supply agreements, in each case arising in the ordinary course of business and not in connection with the borrowing of money or Hedging Obligations.
(r) [Intentionally omitted]
(s) Guarantee obligations in respect of any Investment permitted pursuant to Sections 6.05(a), 6.05(c), 6.05(d) (to the extent existing on the Funds Availability Date), 6.05(e), 6.05(g), 6.05(h), 6.05(j), 6.05(o), 6.05(p) and 6.05(q);
(t) Cash Management Obligations;
(u) Indebtedness representing (i) workers compensation claims, (ii) health, disability or other employee benefits and (iii) deferred compensation to employees, consultants or independent contractors of the Borrower and the Restricted Subsidiaries incurred in the ordinary course of business;
(v) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to current or former officers, managers, consultants, directors and employees (or their respective spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees) to finance the purchase or redemption of Capital Stock or Capital Stock Equivalents of the Borrower permitted by Section 6.06(b);
(w) additional unsecured Indebtedness; provided that (i) such Indebtedness matures after, and does not require any scheduled amortization or other scheduled payments of principal prior to, 91st day following the Revolving Credit Commitment Termination Date or the Maturity Date; (ii) such Indebtedness , whichever is incurred by the Borrower; (iii) both immediately prior and after giving effect to the incurrence thereof, (A) no Default or Event of Default shall exist or result therefrom and (B) the Borrower and its Restricted Subsidiaries shall be in pro forma compliance with the Financial Covenants and (iv) to the extent that such incurrence of additional unsecured Indebtedness exceeds an aggregate principal amount of $20,000,000, the Borrower delivers a certificate of a Financial Officer to the Administrative Agent at least 2 Business Days prior to the incurrence of such unsecured Indebtedness stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirements of this clause (w);
(x) the incurrence by the Borrower or any Restricted Subsidiary of Environmental CapEx Debt or Necessary CapEx Debt (which Indebtedness may be secured to the extent provided in Section 6.02(bb)); provided that, prior to the incurrence of any such Environmental CapEx Debt or Necessary CapEx Debt, the Borrower shall deliver to the Administrative Agent an officers’ certificate by a Financial Officer designating such Indebtedness as Environmental CapEx Debt or Necessary CapEx Debt, as applicable;
(y) Indebtedness incurred by the Borrower and its Restricted Subsidiaries in good faith to invest in nuclear decommissioning trusts or to comply with decommissioning agreements; and
(z) all premiums (if any), interest (including post-petition interest), fees, expenses, charges, and additional or contingent interest on obligations described in clauses (a) through (y) above. For purposes of determining compliance with this Section 6.01, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Indebtedness described in clauses (a) through (z) above, the Borrower shall, in its reasonable discretion, classify and reclassify or later divide, classify or reclassify such item of Indebtedness (or any portion thereof) and will only be required to include the amount and type of such Indebtedness in one or more of the above clauseslater.
Appears in 3 contracts
Samples: Revolving Credit and Term Loan Agreement (Strayer Education Inc), Revolving Credit and Term Loan Agreement (Strayer Education Inc), Revolving Credit and Term Loan Agreement (Strayer Education Inc)
Indebtedness and Preferred Stock. Directly From the Signing Date, the Borrower will not, nor will it cause or permit any of its Restricted Subsidiaries to directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to any Indebtedness, and the Borrower will not issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock except for:
(a) the incurrence by the Borrower (and the Guarantee Guarantees thereof by the any Subsidiary Guarantorsthat will be a Subsidiary Guarantor) of the Indebtedness created (under this Agreement and the Reimbursement Obligations with respect to Letters of Credit issued) under the other Loan Documents;
(b) Indebtedness of the Borrower or any Subsidiary pursuant to a Credit Support Facility;
(c) Indebtedness of the Borrower and its Restricted Subsidiaries existing on the Signing Date and set forth on Schedule 6.01(c) (FundingSigning);
(d) the incurrence by the Borrower and its Restricted Subsidiaries (other than the Subsidiaries that will be NY Real Property Subsidiaries) of Additional Intercreditor Indebtedness; provided that (i) no Default or Event of Default exists immediately prior to, or would exist immediately after giving effect to, the incurrence of any such Indebtedness and (ii) the Borrower shall would be in compliance with the Financial Covenants for the Borrower’s most recently ended Test Period for which financial statements are publicly available immediately preceding the date on which any such Indebtedness is incurred on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if such additional Indebtedness (and any other Indebtedness incurred during such Test Period or from the end of such Test Period through the date on which such calculation is made) had been incurred at the beginning of the applicable Test Period and was outstanding on such calculation date; provided, further that if such Additional Intercreditor Indebtedness takes the form of a revolving credit facility, the tests in the proviso above shall be met on the date such revolving loan commitments become effective, assuming the incurrence of the full committed amount of such revolving credit facility);
(e) the incurrence by (i) the Borrower of Indebtedness in respect of the Senior NotesNotes and, and if applicable, any Funds Availability Indebtedness and (ii) the any Subsidiary Guarantors that will be a Subsidiary Guarantor of Indebtedness in respect of the Senior Note Guarantees and and, if applicable, any Funds Availability Indebtedness Guarantees;
(f) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness represented by Attributable Debt, Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of design, construction, installation, repair, restoration, expansion or improvement or lease of property (real or personal), plant or equipment used in the business of the Borrower or any of its Restricted Subsidiaries or incurred within 270 days after any of the foregoing, in an aggregate principal amount, including (without duplication) all Permitted Refinancing Indebtedness incurred to refund, modify, extend, renew, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (f), not to exceed $600,000,000 at any time outstanding;
(g) the incurrence by the Borrower or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance, replace, defease, modify, extend, renew or discharge Indebtedness (other than intercompany Indebtedness) that was permitted by this Agreement to be incurred under clauses (b), (c), (e), (f), (o), (p) and (x) of this Section 6.011.01; provided, however, however that with respect to the Subsidiaries that will be NY Real Property Subsidiaries, such Permitted Refinancing Indebtedness shall be permitted only with respect to clauses (b), (c), (e), (f), (o) and (x) of this Section 6.011.01;
(h) the incurrence by the Borrower and the Restricted Subsidiaries of unsecured intercompany Indebtedness that constitutes would constitute an Investment permitted under Sections 6.05(g) or 6.05(j); provided, however, however that (i) if the Borrower or any Subsidiary that will be a Subsidiary Guarantor is the obligor on such Indebtedness and the payee is not the Borrower or a Subsidiary that is will be a Subsidiary Guarantor, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Secured Obligations (which subordination may be pursuant to an Intercompany Debt Subordination Agreement or any other agreement containing terms satisfactory to the Administrative Agent and the Collateral Agent executed and delivered by both the applicable borrower and lender); and (ii)(A) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Borrower or a Restricted Subsidiary and (B) any sale or other transfer of any such Indebtedness to a Person that is not either the Borrower or a Restricted Subsidiary will be deemed, in each case, to constitute an incurrence of such Indebtedness by the Borrower or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (h);
(i) the issuance by any of the Borrower’s Restricted Subsidiaries to the Borrower or to any of its other Restricted Subsidiaries of shares of preferred stock; provided, however, that (i) any subsequent issuance or transfer of Equity Interests that results in any such preferred stock being held by a Person other than the Borrower or a Restricted Subsidiary and (ii) any sale or other transfer of any such preferred stock to a Person that is not either the Borrower or a Restricted Subsidiary will be deemed, in each case, to constitute an issuance of such preferred stock by such Restricted Subsidiary that was not permitted by this clause (i);
(j) the incurrence by the Borrower or any of its Restricted Subsidiaries of Commodity Hedging Obligations and Interest Rate/Currency Hedging Obligations, provided, however, that the Subsidiaries that will be NY Real Property Subsidiaries shall not incur Commodity Hedging Obligations or Interest Rate/Currency Hedging Obligations other than pursuant to FERC 205 Contracts;
(k) the Guarantee by the Borrower or any of the Subsidiaries that will be Subsidiary Guarantors of Indebtedness of the Borrower or a Restricted Subsidiary that was permitted to be incurred by another provision of this Section 6.01 1.01 (other than in respect of self insurance); provided that, (i) in each such case, if the Indebtedness being guaranteed is subordinated to the Secured Obligations hereunder, then the Guarantee shall be subordinated to the same extent as the Indebtedness guaranteed and (ii) in the case of Guarantees of Indebtedness incurred pursuant to Section 6.01(w), such Guarantees shall be subordinated on terms at least as restrictive as the subordination terms of the Senior Note Guarantees;
(l) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness arising from the honoring by a bank or other Financial Institution of a check, draft or similar instrument (except in the case of daylight overdrafts) inadvertently drawn against insufficient funds, so long as such Indebtedness is discharged within five Business Days;
(m) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness in respect of, bankers’ acceptances and performance bonds, bid bonds, appeal bonds, completion guarantees, bank guarantees, letters of credit, warehouse receipts and surety bonds provided by the Borrower or a Restricted Subsidiary in the ordinary course of business;
(n) the incurrence of Indebtedness that may be deemed to arise as a result of agreements of the Borrower or any Restricted Subsidiary providing for indemnification, adjustment of purchase price (including earn outs) or any similar obligations, in each case, incurred in connection with any acquisition that would constitute a Permitted Acquisition or Investment which would be permitted pursuant to Sections 6.05(g), 6.05(h) and 6.05(j) or Asset Sale or other disposition not prohibited hereunder; provided that (i) in the case of any such Asset Sale or disposition, the aggregate maximum liability associated with such provisions may not exceed the gross proceeds (including non-cash proceeds) of such disposition and (ii) this clause (n) shall only apply to NY Real Property Subsidiaries in respect of Indebtedness constituting indemnification obligations arising from Asset Sales permitted under Section 6.04(b)disposition;
(o) the incurrence of Indebtedness of a Person or Indebtedness attaching to assets of a Person that, in either case, becomes a Restricted Subsidiary or Indebtedness attaching to assets that are acquired by the Borrower or any Restricted Subsidiary, in each case after the Funds Availability Signing Date as the result of an acquisition that would constitute a Permitted Acquisition; provided that (i) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof, (ii) such Indebtedness is not guaranteed in any respect by the Borrower or any Restricted Subsidiary (other than any such Person that so becomes a Restricted Subsidiary) and (iii)(A) the Borrower executes, and delivers in escrow for release on the Funds Availability Date, pledges of the Capital Stock of such Person are pledged to the Collateral Agent to the extent it would be required under Section 5.10 and (B) such Person executes shall execute and deliver in escrow for release on the Funds Availability Date a supplement to each of the Security Documents (or alternative guarantee and security arrangements in relation to the Secured Obligations) to the extent it would be required under Section 5.10;
(p) the incurrence by the Borrower (other than the Subsidiaries that will be NY Real Property Subsidiaries) of Indebtedness to finance an acquisition that would be a Permitted Acquisition; provided that (i) such Indebtedness is not guaranteed in any respect by any Person other than the Person acquired (the “acquired Person”) as a result of such acquisition that would be a Permitted Acquisition, and (ii)(A) the Borrower executes, and delivers in escrow for release on the Funds Availability Date, pledges of the Capital Stock of such acquired Person to the Collateral Agent to the extent it would be required under Section 5.10 and (B) such acquired Person executes shall execute and deliver in escrow for release on the Funds Availability Date a supplement to the Security Documents (or alternative guarantee and security arrangements in relation to the Secured Obligations) to the extent it would be required under Section 5.10;
(q) the incurrence by the Borrower or any Restricted Subsidiary of Indebtedness consisting of (i) obligations to pay insurance premiums, premiums (ii) self-insurance obligations or (iii) take-or-pay obligations contained in supply agreements, in each case arising in the ordinary course of business and not in connection with the borrowing of money or Hedging Obligations.;
(r) [Intentionally omitted]
(s) Guarantee obligations in respect of any Investment that would be permitted pursuant to Sections 6.05(a), 6.05(c), 6.05(d) (to the extent existing on the Funds Availability Date), 6.05(e), 6.05(g), 6.05(h), 6.05(j), 6.05(o), 6.05(p) and 6.05(q);
(t) Cash Management Obligations;
(u) Indebtedness representing (i) workers compensation claims, (ii) health, disability or other employee benefits and (iii) deferred compensation to employees, consultants or independent contractors of the Borrower and the Restricted Subsidiaries incurred in the ordinary course of business;
(v) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to current or former officers, managers, consultants, directors and employees (or their respective spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees) to finance the purchase or redemption of Capital Stock or Capital Stock Equivalents of the Borrower which would be permitted by Section 6.06(b);
(w) additional unsecured Indebtedness; provided that (i) such Indebtedness matures after, and does not require any scheduled amortization or other scheduled payments of principal prior to, the Revolving Credit Maturity Date; , (ii) such Indebtedness is incurred by the Borrower; (iii) both immediately prior and after giving effect to the incurrence thereof, (A) no Default or Event of Default shall exist or result therefrom and (B) the Borrower and its Restricted Subsidiaries shall be in pro forma compliance with the Financial Covenants and (iv) to the extent that such incurrence of additional unsecured Indebtedness exceeds an aggregate principal amount of $20,000,000, the Borrower delivers a certificate of a Financial Officer to the Administrative Agent at least 2 Business Days prior to the incurrence of such unsecured Indebtedness stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirements of this clause (w);
(x) the incurrence by the Borrower or any Restricted Subsidiary of Environmental CapEx Debt or Necessary CapEx Debt (which Indebtedness may be secured to the extent provided in Section 6.02(bb)); provided that, prior to the incurrence of any such Environmental CapEx Debt or Necessary CapEx Debt, the Borrower shall deliver to the Administrative Agent an officers’ certificate by a Financial Officer designating such Indebtedness as Environmental CapEx Debt or Necessary CapEx Debt, as applicable;
(y) Indebtedness incurred by the Borrower and its Restricted Subsidiaries in good faith to invest in nuclear decommissioning trusts or to comply with decommissioning agreements; and
(z) all premiums (if any), interest (including post-petition interest), fees, expenses, charges, and additional or contingent interest on obligations described in clauses (a) through (y) above. For purposes of determining compliance with this Section 6.01, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Indebtedness described in clauses (a) through (z) above, the Borrower shall, in its reasonable discretion, classify and reclassify or later divide, classify or reclassify such item of Indebtedness (or any portion thereof) and will only be required to include the amount and type of such Indebtedness in one or more of the above clauses.
Appears in 3 contracts
Samples: Credit Agreement (Enexus Energy CORP), Credit Agreement (Enexus Energy CORP), Credit Agreement (Entergy Corp /De/)
Indebtedness and Preferred Stock. Directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to any Indebtedness, and the The Borrower will not issue any Disqualified Stock not, and will not permit any of its Restricted Subsidiaries to, create, incur, assume or suffer to issue exist any shares of preferred stock except forIndebtedness, except:
(a) the incurrence by the Borrower (and the Guarantee thereof by the Subsidiary Guarantors) of the Indebtedness created (and the Reimbursement Obligations with respect pursuant to Letters of Credit issued) under the Loan Documents;
(b) Indebtedness of the Borrower and its Subsidiaries existing on the date hereof and set forth on Schedule 7.1 and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (immediately prior to giving effect to such extension, renewal or any Subsidiary pursuant to a Credit Support Facilityreplacement) or shorten the maturity or the weighted average life thereof;
(c) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations, and its Restricted Subsidiaries set forth any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on Schedule 6.01(c) (Funding);
(d) any such assets prior to the incurrence by acquisition thereof; provided, that such Indebtedness is incurred prior to or within 90 days after such acquisition or the Borrower completion of such construction or improvements or extensions, renewals, and its Restricted Subsidiaries (other than the NY Real Property Subsidiaries) of Additional Intercreditor Indebtedness; provided that (i) no Default or Event of Default exists immediately prior to, or would exist immediately after giving effect to, the incurrence replacements of any such Indebtedness and that do not increase the outstanding principal amount thereof (iiimmediately prior to giving effect to such extension, renewal or replacement) or shorten the Borrower shall be in compliance with maturity or the Financial Covenants for weighted average life thereof; provided further, that the Borrower’s most recently ended Test Period for which financial statements are publicly available immediately preceding the date on which any such Indebtedness is incurred on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if such additional Indebtedness (and any other Indebtedness incurred during such Test Period or from the end of such Test Period through the date on which such calculation is made) had been incurred at the beginning of the applicable Test Period and was outstanding on such calculation date; provided, further that if such Additional Intercreditor Indebtedness takes the form of a revolving credit facility, the tests in the proviso above shall be met on the date such revolving loan commitments become effective, assuming the incurrence of the full committed aggregate principal amount of such revolving credit facility;
(e) the incurrence by (i) the Borrower of Indebtedness in respect of the Senior Notes, and if applicable, any Funds Availability Indebtedness and (ii) the Subsidiary Guarantors of Indebtedness in respect of the Senior Note Guarantees and if applicable, any Funds Availability Indebtedness Guarantees;
(f) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness represented by Attributable Debt, Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of design, construction, installation, repair, restoration, expansion or improvement or lease of property (real or personal), plant or equipment used in the business of the Borrower or any of its Restricted Subsidiaries or incurred within 270 days after any of the foregoing, in an aggregate principal amount, including (without duplication) all Permitted Refinancing Indebtedness incurred to refund, modify, extend, renew, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (f), does not to exceed $600,000,000 5,000,000 at any time outstanding;
(gd) Indebtedness of the incurrence by Borrower owing to any Subsidiary and of any Subsidiary owing to the Borrower or any of its Restricted Subsidiaries of Permitted Refinancing other Subsidiary; provided, that any such Indebtedness in exchange for, or shall be evidenced by the net proceeds of which are used to refund, refinance, replace, defease, modify, extend, renew or discharge Indebtedness Intercompany Note (other than intercompany Indebtednessordinary course “due from/due to” accounts); and provided further that any such Indebtedness that is owed to a Subsidiary that is not a Subsidiary Loan Party shall be subject to Section 7.4;
(e) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary; provided, that was Guarantees by any Loan Party of Indebtedness of any Subsidiary that is not a Subsidiary Loan Party shall be subject to Section 7.4;
(f) Indebtedness in respect of Hedging Obligations permitted by Section 7.10;
(1) purchase money Indebtedness of the Borrower or a Subsidiary Loan Party incurred or created in connection with the consummation of a Permitted Acquisition, and (2) Indebtedness of any Person which becomes a Subsidiary after the date of this Agreement to be incurred under clauses in connection with a Permitted Acquisition; provided, that the Indebtedness described in this clause (b), (c), (e), (f), (o), (p2) exists at the time that such Person becomes a Subsidiary and (x) is not created in contemplation of this Section 6.01or in connection with such Person becoming a Subsidiary; provided, however, that with respect to the NY Real Property Subsidiaries, such Permitted Refinancing aggregate principal amount of the Indebtedness shall be permitted only with respect to clauses (bunder this Section 7.1(g), (cwhen aggregated with the aggregate principal amount of Indebtedness permitted by Section 7.1(i), (e), (f), (o) and (x) of this Section 6.01shall not exceed $15,000,000 outstanding at any time;
(h) Indebtedness incurred in connection with a permitted acquisition of Area Development Rights or Franchise Rights, in either case, to the incurrence by extent such acquisition is financed with the Borrower and proceeds of the Restricted Subsidiaries of unsecured intercompany Indebtedness that constitutes an Investment permitted under Sections 6.05(g) or 6.05(j)Loans; provided, however, that and
(i) if other unsecured Indebtedness of the Borrower or its Subsidiaries in an aggregate principal amount (when aggregated with aggregate principal amount of Indebtedness permitted by Section 7.1(g)) not to exceed $15,000,000 at any time outstanding. The Borrower acknowledges and agrees that to the extent that the Borrower or any Subsidiary Guarantor is the obligor on such Indebtedness and the payee is not the Borrower issues any preferred stock or a Subsidiary other preferred equity interests that is a Subsidiary Guarantor, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Secured Obligations (which subordination may be i) mature(s) or is(are) mandatorily redeemable pursuant to an Intercompany Debt Subordination Agreement a sinking fund obligation or any other agreement containing terms satisfactory to the Administrative Agent and the Collateral Agent executed and delivered by both the applicable borrower and lender); and otherwise, (ii)(Aii) any subsequent issuance is(are) or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Borrower may become redeemable or a Restricted Subsidiary and (B) any sale or other transfer of any such Indebtedness to a Person that is not either the Borrower or a Restricted Subsidiary will be deemed, in each case, to constitute an incurrence of such Indebtedness repurchaseable by the Borrower or such Restricted SubsidiarySubsidiary at the option of the holder thereof, as in whole or in part or (iii) is(are) convertible or exchangeable at the option of the holder thereof for Indebtedness or preferred stock or any other preferred equity interests described in this paragraph, on or prior to, in the case may be, that was not permitted by this clause (h);
(i) the issuance by any of the Borrower’s Restricted Subsidiaries to the Borrower or to any of its other Restricted Subsidiaries of shares of preferred stock; provided, however, that (i) any subsequent issuance or transfer of Equity Interests that results in any such preferred stock being held by a Person other than the Borrower or a Restricted Subsidiary and (ii) any sale or other transfer of any such preferred stock to a Person that is not either the Borrower or a Restricted Subsidiary will be deemed, in each case, to constitute an issuance of such preferred stock by such Restricted Subsidiary that was not permitted by this clause (i);
(j) the incurrence by the Borrower or any of its Restricted Subsidiaries of Commodity Hedging Obligations and Interest Rate/Currency Hedging Obligations, provided, however, that the NY Real Property Subsidiaries shall not incur Commodity Hedging Obligations or Interest Rate/Currency Hedging Obligations other than pursuant to FERC 205 Contracts;
(k) the Guarantee by the Borrower or any of the Subsidiary Guarantors of Indebtedness of the Borrower or a Restricted Subsidiary that was permitted to be incurred by another provision of this Section 6.01 (other than in respect of self insurance); provided that, (i) in each such case, if the Indebtedness being guaranteed is subordinated to the Secured Obligations hereunder, then the Guarantee shall be subordinated to the same extent as the Indebtedness guaranteed and (ii) in the case of Guarantees of Indebtedness incurred pursuant to Section 6.01(w), such Guarantees shall be subordinated on terms at least as restrictive as the subordination terms of the Senior Note Guarantees;
(l) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness arising from the honoring by a bank or other Financial Institution of a check, draft or similar instrument (except in the case of daylight overdrafts) inadvertently drawn against insufficient funds, so long as such Indebtedness is discharged within five Business Days;
(m) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness in respect of, bankers’ acceptances and performance bonds, bid bonds, appeal bonds, completion guarantees, bank guarantees, letters of credit, warehouse receipts and surety bonds provided by the Borrower or a Restricted Subsidiary in the ordinary course of business;
(n) the incurrence of Indebtedness that may be deemed to arise as a result of agreements of the Borrower or any Restricted Subsidiary providing for indemnification, adjustment of purchase price (including earn outs) or any similar obligations, in each case, incurred in connection with any Permitted Acquisition or Investment permitted pursuant to Sections 6.05(g), 6.05(h) and 6.05(j) or Asset Sale or other disposition not prohibited hereunder; provided that (i) in the case of any such Asset Sale or disposition, the aggregate maximum liability associated with such provisions may not exceed the gross proceeds (including non-cash proceeds) of such disposition and (ii) this clause (n) shall only apply to NY Real Property Subsidiaries in respect of Indebtedness constituting indemnification obligations arising from Asset Sales permitted under Section 6.04(b);
(o) the incurrence of Indebtedness of a Person or Indebtedness attaching to assets of a Person that, in either case, becomes a Restricted Subsidiary or Indebtedness attaching to assets that are acquired by the Borrower or any Restricted Subsidiary, in each case after the Funds Availability Date as the result of a Permitted Acquisition; provided that (i) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof, (ii) such Indebtedness is not guaranteed in any respect by the Borrower or any Restricted Subsidiary (other than any such Person that so becomes a Restricted Subsidiary) and (iii)(A) the Capital Stock of such Person are pledged to the Collateral Agent to the extent required under Section 5.10 and (B) such Person executes a supplement to each of the Security Documents (or alternative guarantee and security arrangements in relation to the Secured Obligations) to the extent required under Section 5.10;
(p) the incurrence by the Borrower (other than the NY Real Property Subsidiaries) of Indebtedness to finance a Permitted Acquisition; provided that (i) such Indebtedness is not guaranteed in any respect by any Person other than the Person acquired (the “acquired Person”) as a result of such Permitted Acquisition, and (ii)(A) the Borrower pledges the Capital Stock of such acquired Person to the Collateral Agent to the extent required under Section 5.10 and (B) such acquired Person executes a supplement to the Security Documents (or alternative guarantee and security arrangements in relation to the Secured Obligations) to the extent required under Section 5.10;
(q) the incurrence by the Borrower or any Restricted Subsidiary of Indebtedness consisting of (i) obligations to pay insurance premiums, (ii) self-insurance obligations or (iii) take-or-pay obligations contained in supply agreements), in each case arising the date that is 90 days after the Revolving Commitment Termination Date shall constitute Indebtedness and shall be applied against the limitations expressed in the ordinary course of business and not in connection with the borrowing of money or Hedging Obligations.
(r) [Intentionally omitted]
(s) Guarantee obligations in respect of any Investment permitted pursuant to Sections 6.05(a), 6.05(c), 6.05(d) (to the extent existing on the Funds Availability Date), 6.05(e), 6.05(g), 6.05(h), 6.05(j), 6.05(o), 6.05(p) and 6.05(q);
(t) Cash Management Obligations;
(u) Indebtedness representing (i) workers compensation claims, (ii) health, disability or other employee benefits and (iii) deferred compensation to employees, consultants or independent contractors of the Borrower and the Restricted Subsidiaries incurred in the ordinary course of business;
(v) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to current or former officers, managers, consultants, directors and employees (or their respective spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees) to finance the purchase or redemption of Capital Stock or Capital Stock Equivalents of the Borrower permitted by Section 6.06(b);
(w) additional unsecured Indebtedness; provided that (i) such Indebtedness matures after, and does not require any scheduled amortization or other scheduled payments of principal prior to, the Revolving Credit Maturity Date; (ii) such Indebtedness is incurred by the Borrower; (iii) both immediately prior and after giving effect to the incurrence thereof, (A) no Default or Event of Default shall exist or result therefrom and (B) the Borrower and its Restricted Subsidiaries shall be in pro forma compliance with the Financial Covenants and (iv) to the extent that such incurrence of additional unsecured Indebtedness exceeds an aggregate principal amount of $20,000,000, the Borrower delivers a certificate of a Financial Officer to the Administrative Agent at least 2 Business Days prior to the incurrence of such unsecured Indebtedness stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirements of this clause (w);
(x) the incurrence by the Borrower or any Restricted Subsidiary of Environmental CapEx Debt or Necessary CapEx Debt (which Indebtedness may be secured to the extent provided in Section 6.02(bb)); provided that, prior to the incurrence of any such Environmental CapEx Debt or Necessary CapEx Debt, the Borrower shall deliver to the Administrative Agent an officers’ certificate by a Financial Officer designating such Indebtedness as Environmental CapEx Debt or Necessary CapEx Debtforegoing clauses, as applicable;
(y) Indebtedness incurred by the Borrower and its Restricted Subsidiaries in good faith to invest in nuclear decommissioning trusts or to comply with decommissioning agreements; and
(z) all premiums (if any), interest (including post-petition interest), fees, expenses, charges, and additional or contingent interest on obligations described in clauses (a) through (y) above. For purposes of determining compliance with this Section 6.01, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Indebtedness described in clauses (a) through (z) above, the Borrower shall, in its reasonable discretion, classify and reclassify or later divide, classify or reclassify such item of Indebtedness (or any portion thereof) and will only be required to include the amount and type of such Indebtedness in one or more of the above clauses.
Appears in 2 contracts
Samples: Revolving Credit and Term Loan Agreement (JTH Holding, Inc.), Revolving Credit Agreement (JTH Holding, Inc.)
Indebtedness and Preferred Stock. (a) Directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur”) any IndebtednessIndebtedness (including Acquired Debt), and the Borrower Company will not issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock except for:
stock; provided, however, that the Company may incur Indebtedness (aincluding Acquired Debt) the incurrence by the Borrower (or issue Disqualified Stock, and the Guarantee thereof by Subsidiary Guarantors may incur Indebtedness or issue preferred stock, if the Subsidiary Guarantors) of the Indebtedness created (and the Reimbursement Obligations with respect to Letters of Credit issued) under the Loan Documents;
(b) Indebtedness of the Borrower or any Subsidiary pursuant to a Credit Support Facility;
(c) Indebtedness of the Borrower and its Restricted Subsidiaries set forth on Schedule 6.01(c) (Funding);
(d) the incurrence by the Borrower and its Restricted Subsidiaries (other than the NY Real Property Subsidiaries) of Additional Intercreditor Indebtedness; provided that (i) no Default or Event of Default exists immediately prior to, or would exist immediately after giving effect to, the incurrence of any such Indebtedness and (ii) the Borrower shall be in compliance with the Financial Covenants Fixed Charge Coverage Ratio for the BorrowerCompany’s most recently ended Test Period four full fiscal quarters for which financial statements are publicly available immediately preceding the date on which any such additional Indebtedness is incurred or such Disqualified Stock or preferred stock is issued would have been at least 2.0 to 1.0, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if such the additional Indebtedness (and any other Indebtedness incurred during such Test Period or from the end of such Test Period through the date on which such calculation is made) had been incurred or Disqualified Stock or the preferred stock had been issued, as the case may be, at the beginning of the applicable Test Period and was outstanding on such calculation date; provided, further that if such Additional Intercreditor Indebtedness takes the form four-quarter period.
(b) The provisions of a revolving credit facility, the tests in the proviso above shall be met on the date such revolving loan commitments become effective, assuming Section 6.01(a) will not prohibit the incurrence of any of the full committed amount following items of such revolving credit facility;Indebtedness (collectively, “Permitted Debt”):
(ei) the incurrence by the Borrowers (iand the Guarantee thereof by the Subsidiary Guarantors) the Borrower of Indebtedness in respect of the Senior Notes, Indebtedness created (and if applicable, the reimbursement obligations with respect to Letters of Credit issued) hereunder and any Funds Availability Indebtedness and Revolver Refinancing Indebtedness;
(ii) the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness;
(iii) the incurrence by the Company and the Subsidiary Guarantors of Indebtedness in respect of represented by the Senior Note Notes and the related Guarantees and if applicablethereof, any Funds Availability Indebtedness Guaranteesin each case, issued on or prior to the Restatement Date;
(fiv) the incurrence by the Borrower Company or any of its Restricted Subsidiaries of Indebtedness represented by Attributable Debt, Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of design, construction, installation, repair, restoration, expansion installation or improvement or lease of property (real or personal), plant or equipment used in the business of the Borrower Company or any of its Restricted Subsidiaries or incurred within 270 days after any of the foregoingSubsidiaries, in an aggregate principal amount, including (without duplication) all Permitted Refinancing Indebtedness incurred to refund, modify, extend, renew, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (fiv), not to exceed $600,000,000 150,000,000 at any time outstanding;
(gv) the incurrence by the Borrower Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance, replace, defease, modify, extend, renew defease or discharge Indebtedness (other than intercompany Indebtedness) that was permitted by this Agreement to be incurred under Section 6.01(a) or clauses (bii), (ciii), (eiv), (fv), (oxi), (pxiii) and or (xxvi) of this Section 6.01; provided, however, that with respect to the NY Real Property Subsidiaries, such Permitted Refinancing Indebtedness shall be permitted only with respect to clauses (b6.01(b), (c), (e), (f), (o) and (x) of this Section 6.01;
(hvi) the incurrence by the Borrower and the Company or any of its Restricted Subsidiaries of unsecured intercompany Indebtedness that constitutes an Investment permitted under Sections 6.05(g) between or 6.05(j)among the Company and any of its Restricted Subsidiaries; provided, however, that (iA) if the Borrower Company or any Subsidiary Guarantor is the obligor on such Indebtedness and the payee is not the Borrower Company or a Subsidiary that is a Subsidiary Guarantor, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Secured Obligations hereunder (which subordination may be pursuant to an Intercompany Debt Affiliate Subordination Agreement or any other agreement containing terms satisfactory with respect to the Administrative Agent and subordination of the Collateral Agent obligations thereunder that are substantially the same as the Affiliate Subordination Agreement, in each case, executed and delivered by both the applicable borrower and lender); and (ii)(AB) (x) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Borrower Company or a Restricted Subsidiary and (By) any sale or other transfer of any such Indebtedness to a Person that is not either the Borrower Company or a Restricted Subsidiary will be deemed, in each case, to constitute an incurrence of such Indebtedness by the Borrower Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (hvi);
(ivii) the issuance by any of the BorrowerCompany’s Restricted Subsidiaries to the Borrower Company or to any of its other Restricted Subsidiaries of shares of preferred stock; provided, however, that (iA) any subsequent issuance or transfer of Equity Interests that results in any such preferred stock being held by a Person other than the Borrower Company or a Restricted Subsidiary and (iiB) any sale or other transfer of any such preferred stock to a Person that is not either the Borrower Company or a Restricted Subsidiary will be deemed, in each case, to constitute an issuance of such preferred stock by such Restricted Subsidiary that was not permitted by this clause (ivii);
(jviii) the incurrence by the Borrower Company or any of its Restricted Subsidiaries of Commodity Hedging Obligations in the ordinary course of business and Interest Rate/Currency Hedging Obligations, provided, however, that the NY Real Property Subsidiaries shall not incur Commodity Hedging Obligations or Interest Rate/Currency Hedging Obligations other than pursuant to FERC 205 Contractsfor speculative purposes;
(kix) the Guarantee by (A) the Borrower Company or any of the Subsidiary Guarantors of Indebtedness of the Borrower Company or a Restricted Subsidiary that was permitted to be incurred by another provision of this Section 6.01 covenant; (B) any of the Excluded Project Subsidiaries of Indebtedness of any other than in respect Excluded Project Subsidiary; and (C) any of self insurance)the Excluded Foreign Subsidiaries of Indebtedness of any other Excluded Foreign Subsidiary; provided that, (i) in each such case, if the Indebtedness being guaranteed is subordinated to the Secured Obligations hereunder, then the Guarantee guarantee shall be subordinated to the same extent as the Indebtedness guaranteed and (ii) in the case of Guarantees of Indebtedness incurred pursuant to Section 6.01(w), such Guarantees shall be subordinated on terms at least as restrictive as the subordination terms of the Senior Note Guaranteesguaranteed;
(lx) the incurrence by the Borrower Company or any of its Restricted Subsidiaries of Indebtedness arising from the honoring by a bank or other Financial Institution financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) inadvertently drawn against insufficient fundsfunds in the ordinary course of business, so long as such Indebtedness is discharged covered within five Business Days;
(mxi) the Xcel Note;
(xii) the incurrence by the Borrower Company or any of its Restricted Subsidiaries of Indebtedness in respect ofof workers’ compensation claims, self-insurance obligations, bankers’ acceptances acceptance and performance bonds, bid bonds, appeal bonds, completion guarantees, bank guarantees, letters of credit, warehouse receipts and surety bonds provided by the Borrower Company or a Restricted Subsidiary in the ordinary course of business;
(nxiii) the incurrence of Additional Non-Recourse Indebtedness by any Excluded Subsidiary if, immediately after giving effect to the incurrence of such Additional Non-Recourse Indebtedness and the application of the proceeds therefrom, the Company’s pro forma Secured Leverage Ratio would not exceed 2.75 to 1.0;
(xiv) the incurrence of Indebtedness that may be deemed to arise as a result of agreements of the Borrower Company or any Restricted Subsidiary providing for indemnification, adjustment of purchase price (including earn outs) or any similar obligations, in each case, incurred in connection with the disposition of any Permitted Acquisition business, assets or Investment permitted pursuant to Sections 6.05(g), 6.05(h) and 6.05(j) or Asset Sale or other disposition not prohibited hereunderEquity Interests of any Subsidiary; provided that (i) in the case of any such Asset Sale or disposition, the aggregate maximum liability associated with such provisions may not exceed the gross proceeds (including non-cash proceeds) of such disposition and (ii) this clause (n) shall only apply to NY Real Property Subsidiaries in respect of Indebtedness constituting indemnification obligations arising from Asset Sales permitted under Section 6.04(b)disposition;
(o) the incurrence of Indebtedness of a Person or Indebtedness attaching to assets of a Person that, in either case, becomes a Restricted Subsidiary or Indebtedness attaching to assets that are acquired by the Borrower or any Restricted Subsidiary, in each case after the Funds Availability Date as the result of a Permitted Acquisition; provided that (i) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof, (ii) such Indebtedness is not guaranteed in any respect by the Borrower or any Restricted Subsidiary (other than any such Person that so becomes a Restricted Subsidiary) and (iii)(A) the Capital Stock of such Person are pledged to the Collateral Agent to the extent required under Section 5.10 and (B) such Person executes a supplement to each of the Security Documents (or alternative guarantee and security arrangements in relation to the Secured Obligations) to the extent required under Section 5.10;
(pxv) the incurrence by the Borrower (other than the NY Real Property Subsidiaries) of Indebtedness to finance a Permitted Acquisition; provided that (i) such Indebtedness is not guaranteed in any respect by any Person other than the Person acquired (the “acquired Person”) as a result of such Permitted Acquisition, and (ii)(A) the Borrower pledges the Capital Stock of such acquired Person to the Collateral Agent to the extent required under Section 5.10 and (B) such acquired Person executes a supplement to the Security Documents (or alternative guarantee and security arrangements in relation to the Secured Obligations) to the extent required under Section 5.10;
(q) the incurrence by the Borrower Company or any Restricted Subsidiary of Indebtedness consisting represented by letters of (i) obligations to pay insurance premiumscredit, (ii) self-insurance obligations guarantees of Indebtedness or (iii) take-or-pay obligations contained in supply agreements, in each case arising in the ordinary course of business and not in connection with the borrowing of money or Hedging Obligations.
(r) [Intentionally omitted]
(s) Guarantee obligations in respect of any Investment permitted pursuant to Sections 6.05(a), 6.05(c), 6.05(d) (other similar instruments to the extent existing on the Funds Availability Date), 6.05(e), 6.05(g), 6.05(h), 6.05(j), 6.05(o), 6.05(p) and 6.05(q);
(t) Cash Management Obligations;
(u) Indebtedness representing (i) workers compensation claims, (ii) health, disability or other employee benefits and (iii) deferred compensation to employees, consultants or independent contractors of the Borrower and the Restricted Subsidiaries incurred in the ordinary course of business;
(v) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to current or former officers, managers, consultants, directors and employees (or their respective spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees) to finance the purchase or redemption of Capital Stock or Capital Stock Equivalents of the Borrower permitted by Section 6.06(b);
(w) additional unsecured Indebtedness; provided that (i) such Indebtedness matures after, and does not require any scheduled amortization or other scheduled payments of principal prior to, the Revolving Credit Maturity Date; (ii) such Indebtedness is incurred by the Borrower; (iii) both immediately prior and after giving effect to the incurrence thereof, (A) no Default or Event of Default shall exist or result therefrom such instruments are cash collateralized and (B) the Borrower and its Company or such Restricted Subsidiaries shall be in pro forma compliance with Subsidiary would have been permitted to expend the Financial Covenants and (iv) funds used to cash collateralize such instrument directly under the extent that such incurrence of additional unsecured Indebtedness exceeds an aggregate principal amount of $20,000,000, the Borrower delivers a certificate of a Financial Officer to the Administrative Agent at least 2 Business Days prior to the incurrence of such unsecured Indebtedness stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirements of this clause (w)Agreement;
(xxvi) the incurrence by the Borrower Company and/or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (xvi), not to exceed $250,000,000; and
(xvii) the incurrence by the Company and/or any of its Restricted Subsidiaries of unsecured Indebtedness or Permitted Second Priority Secured Indebtedness in each case (A) that does not mature, and is not subject to mandatory repurchase, redemption or amortization (other than pursuant to customary asset sale or change of control provision requiring redemption or repurchase only if and to the extent permitted by this Agreement) prior to the date that is six months after the Term Loan Maturity Date, (B) that is not exchangeable or convertible into Indebtedness of the Company (other than other Indebtedness permitted by this clause) or any Restricted Subsidiary of Environmental CapEx Debt or Necessary CapEx Debt any preferred stock or other Equity Interest and (which Indebtedness may be secured C) solely to the extent provided the Net Cash Proceeds thereof are used to refinance Term Loans or refinance and permanently reduce commitments in Section 6.02(bb)); provided thatrespect of Revolving Loans or Credit-Linked Deposits. The Company will not incur, prior and will not permit any Subsidiary Guarantor to incur, any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any other Indebtedness of the Company or such Subsidiary Guarantor unless such Indebtedness is also contractually subordinated in right of payment to the incurrence Secured Obligations hereunder and the applicable guarantees thereof on substantially identical terms; provided, however, that no Indebtedness will be deemed to be contractually subordinated in right of payment to any such Environmental CapEx Debt other Indebtedness of the Company solely by virtue of being unsecured or Necessary CapEx Debt, the Borrower shall deliver to the Administrative Agent an officers’ certificate by virtue of being secured on a Financial Officer designating such Indebtedness as Environmental CapEx Debt first or Necessary CapEx Debt, as applicable;
(y) Indebtedness incurred by the Borrower and its Restricted Subsidiaries in good faith to invest in nuclear decommissioning trusts or to comply with decommissioning agreements; and
(z) all premiums (if any), interest (including post-petition interest), fees, expenses, charges, and additional or contingent interest on obligations described in clauses (a) through (y) abovejunior Lien basis. For purposes of determining compliance with this Section 6.01, in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Indebtedness Permitted Debt described in clauses (ai) through (zxvi) above, or is entitled to be incurred pursuant to Section 6.01(a), the Borrower shall, in its reasonable discretion, Company will be permitted to classify and reclassify or later divide, classify or reclassify such item of Indebtedness (on the date of its incurrence, or later reclassify all or a portion of such item of Indebtedness, in any portion thereof) manner that complies with this Section 6.01. The accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock will only not be required deemed to include be an incurrence of Indebtedness or an issuance of Disqualified Stock for purposes of this Section 6.01; provided, in each such case, that the amount thereof is included in Fixed Charges of the Company as accrued. For purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of Indebtedness, the U.S. dollar-equivalent principal amount of Indebtedness denominated in a foreign currency will be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred; provided that if such Indebtedness is incurred to refinance other Indebtedness denominated in a foreign currency, and type such refinancing would cause the applicable U.S. dollar-dominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-dominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of the Indebtedness being refinanced. The amount of any Indebtedness outstanding as of any date will be (a) the accreted value of the Indebtedness, in one or more the case of any Indebtedness issued with original issue discount; (b) the principal amount of the Indebtedness, in the case of any other Indebtedness; and (c) in respect of Indebtedness of another Person secured by a Lien on the assets of the specified Person, the lesser of (i) the Fair Market Value of such asset at the date of determination, and (ii) the amount of the Indebtedness of the other Person; provided that any changes in any of the above clausesshall not give rise to a default under this Section 6.01.
Appears in 1 contract
Samples: Credit Agreement (NRG Energy, Inc.)
Indebtedness and Preferred Stock. Directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to any Indebtedness(a) The Issuer will not, and the Borrower Issuer will not issue any Disqualified Stock and will not permit any ensure that each of its the Restricted Subsidiaries to issue will not, Incur any shares of preferred stock except forIndebtedness; provided, however, that the Issuer and the Restricted Subsidiaries may Incur Indebtedness:
(a1) if no Default has occurred and is continuing; and
(2) in the incurrence by case of Indebtedness which is Priority Debt, then after giving pro forma effect to the Borrower (Incurrence of such Indebtedness and the Guarantee thereof by the Subsidiary Guarantors) receipt and application of the Indebtedness created (and proceeds therefrom, the Reimbursement Obligations with respect Net Priority Debt Leverage Ratio does not exceed 6.5 to Letters of Credit issued) under the Loan Documents;1.0.
(b) Indebtedness Notwithstanding the foregoing, the Issuer or any of the Borrower or any Subsidiary pursuant to a Credit Support FacilityRestricted Subsidiaries may Incur each and all of the following (“Permitted Indebtedness”):
(1) Indebtedness under the Notes (excluding Additional Notes, if any);
(c2) Indebtedness of the Borrower and its Issuer or any of the Restricted Subsidiaries set forth Subsidiaries, as the case may be, outstanding on Schedule 6.01(cthe Original Issue Date (excluding Indebtedness permitted under clause (3) (Fundingbelow);
(d3) Indebtedness of the incurrence by Issuer or any of the Borrower and its Restricted Subsidiaries, as the case may be, owed to the Issuer or any of the Restricted Subsidiaries (other than the NY Real Property Subsidiaries) of Additional Intercreditor “Intra-Restricted Group Indebtedness”); provided provided, however, that (i) no Default or Event of Default exists immediately prior to, or would exist immediately after giving effect to, the incurrence of any event which results in any such Indebtedness and (ii) the Borrower shall be in compliance with the Financial Covenants for the Borrower’s most recently ended Test Period for Restricted Subsidiary to which financial statements are publicly available immediately preceding the date on which any such Indebtedness is incurred on owed, ceasing to be a pro forma basis (including a pro forma application Restricted Subsidiary, or any subsequent transfer of the net proceeds therefrom), as if such additional Indebtedness (and any other Indebtedness incurred during such Test Period or from than a transfer to the end of such Test Period through the date on which such calculation is made) had been incurred at the beginning of the applicable Test Period and was outstanding on such calculation date; provided, further that if such Additional Intercreditor Indebtedness takes the form of a revolving credit facility, the tests in the proviso above shall be met on the date such revolving loan commitments become effective, assuming the incurrence of the full committed amount of such revolving credit facility;
(e) the incurrence by (i) the Borrower of Indebtedness in respect of the Senior Notes, and if applicable, any Funds Availability Indebtedness and (ii) the Subsidiary Guarantors of Indebtedness in respect of the Senior Note Guarantees and if applicable, any Funds Availability Indebtedness Guarantees;
(f) the incurrence by the Borrower Issuer or any of its the Restricted Subsidiaries of Indebtedness represented by Attributable Debt, Capital Lease Obligations, mortgage financings or purchase money obligationsSubsidiaries) shall be deemed, in each case, incurred for to no longer constitute Intra-Restricted Group Indebtedness and shall instead be deemed to constitute an Incurrence of such Indebtedness not permitted by this clause (3), and to the purpose extent that the Issuer is the obligor on any such Indebtedness, such Indebtedness must be unsecured and be expressly subordinated in right of financing all or any part payment to the Notes;
(4) Indebtedness of the purchase price or cost of design, construction, installation, repair, restoration, expansion or improvement or lease of property (real or personal), plant or equipment used in the business of the Borrower Issuer or any of its the Restricted Subsidiaries or incurred within 270 days after any of the foregoing, in an aggregate principal amount, including (without duplication) all “Permitted Refinancing Indebtedness incurred to refund, modify, extend, renew, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (f), not to exceed $600,000,000 at any time outstanding;
(gIndebtedness”) the incurrence by the Borrower or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness issued in exchange for, or the net proceeds of which are used to refinance or refund, refinance, replace, exchange, renew, repay, redeem, defease, modifydischarge or extend (collectively, extend“refinance” and “refinances” and “refinanced” shall have a correlative meaning), renew then outstanding Indebtedness Incurred under Section 4.09(a) or discharge Indebtedness Incurred under any of clause (other than intercompany Indebtedness) that was permitted by this Agreement to be incurred under clauses (bb)(1), (c2), (e), 4) or (f), (o), (p9) and any refinancings thereof in an amount not to exceed the amount so refinanced (x) of this Section 6.01; providedplus premiums, howeveraccrued interest, that with respect to the NY Real Property Subsidiaries, such Permitted Refinancing Indebtedness shall be permitted only with respect to clauses (b), (c), (e), (f), (o) fees and (x) of this Section 6.01;
(h) the incurrence by the Borrower and the Restricted Subsidiaries of unsecured intercompany Indebtedness that constitutes an Investment permitted under Sections 6.05(g) or 6.05(jexpenses); provided, however, that (i) if the Borrower or any Subsidiary Guarantor is the obligor on such Indebtedness and the payee is not the Borrower or a Subsidiary that is a Subsidiary Guarantor, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Secured Obligations (which subordination may be pursuant to an Intercompany Debt Subordination Agreement or any other agreement containing terms satisfactory to the Administrative Agent and the Collateral Agent executed and delivered by both the applicable borrower and lender); and (ii)(A) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Borrower or a Restricted Subsidiary and (B) any sale or other transfer of any such Indebtedness to a Person that is not either the Borrower or a Restricted Subsidiary will be deemed, in each case, to constitute an incurrence of such Indebtedness by the Borrower or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (h);provided that:
(i) the issuance by any Indebtedness to be refinanced is fully and irrevocably repaid no later than 180 days after the Incurrence of the Borrower’s Restricted Subsidiaries to the Borrower or to any of its other Restricted Subsidiaries of shares of preferred stock; provided, however, that (i) any subsequent issuance or transfer of Equity Interests that results in any such preferred stock being held by a Person other than the Borrower or a Restricted Subsidiary and (ii) any sale or other transfer of any such preferred stock to a Person that is not either the Borrower or a Restricted Subsidiary will be deemed, in each case, to constitute an issuance of such preferred stock by such Restricted Subsidiary that was not permitted by this clause (i);
(j) the incurrence by the Borrower or any of its Restricted Subsidiaries of Commodity Hedging Obligations and Interest Rate/Currency Hedging Obligations, provided, however, that the NY Real Property Subsidiaries shall not incur Commodity Hedging Obligations or Interest Rate/Currency Hedging Obligations other than pursuant to FERC 205 Contracts;
(k) the Guarantee by the Borrower or any of the Subsidiary Guarantors of Indebtedness of the Borrower or a Restricted Subsidiary that was permitted to be incurred by another provision of this Section 6.01 (other than in respect of self insurance); provided that, (i) in each such case, if the Indebtedness being guaranteed is subordinated to the Secured Obligations hereunder, then the Guarantee shall be subordinated to the same extent as the Indebtedness guaranteed and (ii) in the case of Guarantees of Indebtedness incurred pursuant to Section 6.01(w), such Guarantees shall be subordinated on terms at least as restrictive as the subordination terms of the Senior Note Guarantees;
(l) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness arising from the honoring by a bank or other Financial Institution of a check, draft or similar instrument (except in the case of daylight overdrafts) inadvertently drawn against insufficient funds, so long as such Indebtedness is discharged within five Business Days;
(m) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness in respect of, bankers’ acceptances and performance bonds, bid bonds, appeal bonds, completion guarantees, bank guarantees, letters of credit, warehouse receipts and surety bonds provided by the Borrower or a Restricted Subsidiary in the ordinary course of business;
(n) the incurrence of Indebtedness that may be deemed to arise as a result of agreements of the Borrower or any Restricted Subsidiary providing for indemnification, adjustment of purchase price (including earn outs) or any similar obligations, in each case, incurred in connection with any Permitted Acquisition or Investment permitted pursuant to Sections 6.05(g), 6.05(h) and 6.05(j) or Asset Sale or other disposition not prohibited hereunder; provided that (i) in the case of any such Asset Sale or disposition, the aggregate maximum liability associated with such provisions may not exceed the gross proceeds (including non-cash proceeds) of such disposition and (ii) this clause (n) shall only apply to NY Real Property Subsidiaries in respect of Indebtedness constituting indemnification obligations arising from Asset Sales permitted under Section 6.04(b);
(o) the incurrence of Indebtedness of a Person or Indebtedness attaching to assets of a Person that, in either case, becomes a Restricted Subsidiary or Indebtedness attaching to assets that are acquired by the Borrower or any Restricted Subsidiary, in each case after the Funds Availability Date as the result of a Permitted Acquisition; provided that (i) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof, (ii) such Indebtedness is not guaranteed in any respect by the Borrower or any Restricted Subsidiary (other than any such Person that so becomes a Restricted Subsidiary) and (iii)(A) the Capital Stock of such Person are pledged to the Collateral Agent to the extent required under Section 5.10 and (B) such Person executes a supplement to each of the Security Documents (or alternative guarantee and security arrangements in relation to the Secured Obligations) to the extent required under Section 5.10;
(p) the incurrence by the Borrower (other than the NY Real Property Subsidiaries) of Indebtedness to finance a Permitted Acquisition; provided that (i) such Indebtedness is not guaranteed in any respect by any Person other than the Person acquired (the “acquired Person”) as a result of such Permitted Acquisition, and (ii)(A) the Borrower pledges the Capital Stock of such acquired Person to the Collateral Agent to the extent required under Section 5.10 and (B) such acquired Person executes a supplement to the Security Documents (or alternative guarantee and security arrangements in relation to the Secured Obligations) to the extent required under Section 5.10;
(q) the incurrence by the Borrower or any Restricted Subsidiary of Indebtedness consisting of (i) obligations to pay insurance premiums, (ii) self-insurance obligations or (iii) take-or-pay obligations contained in supply agreements, in each case arising in the ordinary course of business and not in connection with the borrowing of money or Hedging Obligations.
(r) [Intentionally omitted]
(s) Guarantee obligations in respect of any Investment permitted pursuant to Sections 6.05(a), 6.05(c), 6.05(d) (to the extent existing on the Funds Availability Date), 6.05(e), 6.05(g), 6.05(h), 6.05(j), 6.05(o), 6.05(p) and 6.05(q);
(t) Cash Management Obligations;
(u) Indebtedness representing (i) workers compensation claims, (ii) health, disability or other employee benefits and (iii) deferred compensation to employees, consultants or independent contractors of the Borrower and the Restricted Subsidiaries incurred in the ordinary course of business;
(v) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to current or former officers, managers, consultants, directors and employees (or their respective spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees) to finance the purchase or redemption of Capital Stock or Capital Stock Equivalents of the Borrower permitted by Section 6.06(b);
(w) additional unsecured Refinancing Indebtedness; provided that (i) such Indebtedness matures after, and does not require any scheduled amortization or other scheduled payments of principal prior to, the Revolving Credit Maturity Date; (ii) such Indebtedness is incurred by the Borrower; (iii) both immediately prior and after giving effect to the incurrence thereof, (A) no Default or Event of Default shall exist or result therefrom and (B) the Borrower and its Restricted Subsidiaries shall be in pro forma compliance with the Financial Covenants and (iv) to the extent that such incurrence of additional unsecured Indebtedness exceeds an aggregate principal amount of $20,000,000, the Borrower delivers a certificate of a Financial Officer to the Administrative Agent at least 2 Business Days prior to the incurrence of such unsecured Indebtedness stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirements of this clause (w);
(x) the incurrence by the Borrower or any Restricted Subsidiary of Environmental CapEx Debt or Necessary CapEx Debt (which Indebtedness may be secured to the extent provided in Section 6.02(bb)); provided that, prior to the incurrence of any such Environmental CapEx Debt or Necessary CapEx Debt, the Borrower shall deliver to the Administrative Agent an officers’ certificate by a Financial Officer designating such Indebtedness as Environmental CapEx Debt or Necessary CapEx Debt, as applicable;
(y) Indebtedness incurred by the Borrower and its Restricted Subsidiaries in good faith to invest in nuclear decommissioning trusts or to comply with decommissioning agreements; and
(zii) all premiums (if any)Indebtedness the proceeds of which are used to refinance the Notes, interest (including post-petition interest)or to refinance Indebtedness that is pari passu with, fees, expenses, charges, and additional or contingent interest on obligations described subordinated in clauses (a) through (y) above. For purposes right of determining compliance with this Section 6.01, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Indebtedness described in clauses (a) through (z) abovepayment to, the Borrower shallNotes, in its reasonable discretion, classify and reclassify or later divide, classify or reclassify such item of Indebtedness (or any portion thereof) and will only be required to include the amount and type of such Indebtedness in one or more of the above clauses.permitted under this clause (b)
Appears in 1 contract
Samples: Trust Deed (ReNew Energy Global PLC)
Indebtedness and Preferred Stock. Directly (a) The Borrower will not, nor will it permit any of its Subsidiaries (other than the CFN Subsidiaries, the iXL Ventures Subsidiaries or indirectlythe Joint Venture Subsidiaries, except at any time that loans or advances by the Borrower to any of the CFN Subsidiaries, the iXL Ventures Subsidiaries or the Joint Venture Subsidiaries, as applicable, pursuant to Section 6.04(d) shall remain outstanding) to, create, incur, issue, assume, guarantee assume or otherwise become directly or indirectly liable, contingently or otherwise, with respect permit to exist any Indebtedness, and the Borrower will not issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock except forexcept:
(ai) the incurrence by the Borrower (and the Guarantee thereof by the Subsidiary Guarantors) of the Indebtedness created (and the Reimbursement Obligations with respect to Letters of Credit issued) under the Loan Documents;
(bii) Indebtedness existing on the Effective Date and set forth in Schedule 6.01, and any extensions, renewals or replacements of any such Indebtedness that (A) do not increase the outstanding principal amount thereof, (B) do not result in an earlier maturity date or decreased weighted average life thereof and (C) are consummated on terms and subject to conditions no more restrictive than are in existence with respect to such Indebtedness as of the Effective Date; provided, that any Indebtedness owed by any of the CFN Subsidiaries, the iXL Ventures Subsidiaries or the Joint Venture Subsidiaries to the Borrower or any Subsidiary Loan Party shall not be reborrowed following repayment thereof;
(iii) Indebtedness of any Loan Party to any other Loan Party;
(iv) Guarantees by the Borrower of Indebtedness of any other Subsidiary Loan Party permitted hereunder;
(v) Indebtedness of the Borrower or any Subsidiary pursuant Loan Party incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Credit Support Facility;
(c) Lien on any such assets prior to the acquisition thereof, and extensions, renewals and replacements of any such Indebtedness of that do not increase the Borrower and its Restricted Subsidiaries set forth on Schedule 6.01(c) (Funding);
(d) the incurrence by the Borrower and its Restricted Subsidiaries (other than the NY Real Property Subsidiaries) of Additional Intercreditor Indebtednessoutstanding principal amount thereof; provided that (iA) no Default or Event of Default exists immediately prior to, or would exist immediately after giving effect to, the incurrence of any such Indebtedness and (ii) the Borrower shall be in compliance with the Financial Covenants for the Borrower’s most recently ended Test Period for which financial statements are publicly available immediately preceding the date on which any such Indebtedness is incurred on a pro forma basis (including a pro forma application of prior to or within 90 days after such acquisition or the net proceeds therefrom), as if such additional Indebtedness (and any other Indebtedness incurred during such Test Period or from the end completion of such Test Period through construction or improvement and (B) the date on which such calculation is made) had been incurred at the beginning of the applicable Test Period and was outstanding on such calculation date; provided, further that if such Additional Intercreditor Indebtedness takes the form of a revolving credit facility, the tests in the proviso above shall be met on the date such revolving loan commitments become effective, assuming the incurrence of the full committed aggregate principal amount of such revolving credit facility;
(e) the incurrence Indebtedness permitted by (i) the Borrower of Indebtedness in respect of the Senior Notes, and if applicable, any Funds Availability Indebtedness and (ii) the Subsidiary Guarantors of Indebtedness in respect of the Senior Note Guarantees and if applicable, any Funds Availability Indebtedness Guarantees;
(f) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness represented by Attributable Debt, Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of design, construction, installation, repair, restoration, expansion or improvement or lease of property (real or personal), plant or equipment used in the business of the Borrower or any of its Restricted Subsidiaries or incurred within 270 days after any of the foregoing, in an aggregate principal amount, including (without duplication) all Permitted Refinancing Indebtedness incurred to refund, modify, extend, renew, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (f), v) shall not to exceed $600,000,000 15,000,000 at any time outstanding;
(gvi) Indebtedness of any Person that becomes a Subsidiary after the incurrence by the Borrower or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance, replace, defease, modify, extend, renew or discharge Indebtedness (other than intercompany Indebtedness) that was permitted by this Agreement to be incurred under clauses (b), (c), (e), (f), (o), (p) and (x) of this Section 6.01Effective Date; provided, however, that with respect to the NY Real Property Subsidiaries, such Permitted Refinancing Indebtedness shall be permitted only with respect to clauses (b), (c), (e), (f), (o) and (x) of this Section 6.01;
(h) the incurrence by the Borrower and the Restricted Subsidiaries of unsecured intercompany Indebtedness that constitutes an Investment permitted under Sections 6.05(g) or 6.05(j); provided, however, provided that (iA) if the Borrower or any Subsidiary Guarantor is the obligor on such Indebtedness exists at the time such Person becomes a Subsidiary and the payee is not the Borrower created in contemplation of or in connection with such Person becoming a Subsidiary that is a Subsidiary Guarantor, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Secured Obligations (which subordination may be pursuant to an Intercompany Debt Subordination Agreement or any other agreement containing terms satisfactory to the Administrative Agent and the Collateral Agent executed and delivered by both the applicable borrower and lender); and (ii)(A) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Borrower or a Restricted Subsidiary and (B) any sale or other transfer the aggregate principal amount of any such Indebtedness to a Person that is not either the Borrower or a Restricted Subsidiary will be deemed, in each case, to constitute an incurrence of such Indebtedness by the Borrower or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (h);
(ivi) the issuance by any of the Borrower’s Restricted Subsidiaries to the Borrower or to any of its other Restricted Subsidiaries of shares of preferred stock; provided, however, that (i) any subsequent issuance or transfer of Equity Interests that results in any such preferred stock being held by a Person other than the Borrower or a Restricted Subsidiary and (ii) any sale or other transfer of any such preferred stock to a Person that is not either the Borrower or a Restricted Subsidiary will be deemed, in each case, to constitute an issuance of such preferred stock by such Restricted Subsidiary that was not permitted by this clause (i);
(j) the incurrence by the Borrower or any of its Restricted Subsidiaries of Commodity Hedging Obligations and Interest Rate/Currency Hedging Obligations, provided, however, that the NY Real Property Subsidiaries shall not incur Commodity Hedging Obligations or Interest Rate/Currency Hedging Obligations other than pursuant to FERC 205 Contracts;
(k) the Guarantee by the Borrower or exceed $4,000,000 at any of the Subsidiary Guarantors of Indebtedness of the Borrower or a Restricted Subsidiary that was permitted to be incurred by another provision of this Section 6.01 (other than in respect of self insurance); provided that, (i) in each such case, if the Indebtedness being guaranteed is subordinated to the Secured Obligations hereunder, then the Guarantee shall be subordinated to the same extent as the Indebtedness guaranteed and (ii) in the case of Guarantees of Indebtedness incurred pursuant to Section 6.01(w), such Guarantees shall be subordinated on terms at least as restrictive as the subordination terms of the Senior Note Guarantees;
(l) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness arising from the honoring by a bank or other Financial Institution of a check, draft or similar instrument (except in the case of daylight overdrafts) inadvertently drawn against insufficient funds, so long as such Indebtedness is discharged within five Business Days;
(m) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness in respect of, bankers’ acceptances and performance bonds, bid bonds, appeal bonds, completion guarantees, bank guarantees, letters of credit, warehouse receipts and surety bonds provided by the Borrower or a Restricted Subsidiary in the ordinary course of business;
(n) the incurrence of Indebtedness that may be deemed to arise as a result of agreements of the Borrower or any Restricted Subsidiary providing for indemnification, adjustment of purchase price (including earn outs) or any similar obligations, in each case, incurred in connection with any Permitted Acquisition or Investment permitted pursuant to Sections 6.05(g), 6.05(h) and 6.05(j) or Asset Sale or other disposition not prohibited hereunder; provided that (i) in the case of any such Asset Sale or disposition, the aggregate maximum liability associated with such provisions may not exceed the gross proceeds (including non-cash proceeds) of such disposition and (ii) this clause (n) shall only apply to NY Real Property Subsidiaries in respect of Indebtedness constituting indemnification obligations arising from Asset Sales permitted under Section 6.04(b);
(o) the incurrence of Indebtedness of a Person or Indebtedness attaching to assets of a Person that, in either case, becomes a Restricted Subsidiary or Indebtedness attaching to assets that are acquired by the Borrower or any Restricted Subsidiary, in each case after the Funds Availability Date as the result of a Permitted Acquisition; provided that (i) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof, (ii) such Indebtedness is not guaranteed in any respect by the Borrower or any Restricted Subsidiary (other than any such Person that so becomes a Restricted Subsidiary) and (iii)(A) the Capital Stock of such Person are pledged to the Collateral Agent to the extent required under Section 5.10 and (B) such Person executes a supplement to each of the Security Documents (or alternative guarantee and security arrangements in relation to the Secured Obligations) to the extent required under Section 5.10;
(p) the incurrence by the Borrower (other than the NY Real Property Subsidiaries) of Indebtedness to finance a Permitted Acquisition; provided that (i) such Indebtedness is not guaranteed in any respect by any Person other than the Person acquired (the “acquired Person”) as a result of such Permitted Acquisition, and (ii)(A) the Borrower pledges the Capital Stock of such acquired Person to the Collateral Agent to the extent required under Section 5.10 and (B) such acquired Person executes a supplement to the Security Documents (or alternative guarantee and security arrangements in relation to the Secured Obligations) to the extent required under Section 5.10;
(q) the incurrence by the Borrower or any Restricted Subsidiary of Indebtedness consisting of (i) obligations to pay insurance premiums, (ii) self-insurance obligations or (iii) take-or-pay obligations contained in supply agreements, in each case arising in the ordinary course of business and not in connection with the borrowing of money or Hedging Obligations.
(r) [Intentionally omitted]
(s) Guarantee obligations in respect of any Investment permitted pursuant to Sections 6.05(a), 6.05(c), 6.05(d) (to the extent existing on the Funds Availability Date), 6.05(e), 6.05(g), 6.05(h), 6.05(j), 6.05(o), 6.05(p) and 6.05(q);
(t) Cash Management Obligations;
(u) Indebtedness representing (i) workers compensation claims, (ii) health, disability or other employee benefits and (iii) deferred compensation to employees, consultants or independent contractors of the Borrower and the Restricted Subsidiaries incurred in the ordinary course of business;
(v) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to current or former officers, managers, consultants, directors and employees (or their respective spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees) to finance the purchase or redemption of Capital Stock or Capital Stock Equivalents of the Borrower permitted by Section 6.06(b);
(w) additional unsecured Indebtedness; provided that (i) such Indebtedness matures after, and does not require any scheduled amortization or other scheduled payments of principal prior to, the Revolving Credit Maturity Date; (ii) such Indebtedness is incurred by the Borrower; (iii) both immediately prior and after giving effect to the incurrence thereof, (A) no Default or Event of Default shall exist or result therefrom and (B) the Borrower and its Restricted Subsidiaries shall be in pro forma compliance with the Financial Covenants and (iv) to the extent that such incurrence of additional unsecured Indebtedness exceeds an aggregate principal amount of $20,000,000, the Borrower delivers a certificate of a Financial Officer to the Administrative Agent at least 2 Business Days prior to the incurrence of such unsecured Indebtedness stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirements of this clause (w);
(x) the incurrence by the Borrower or any Restricted Subsidiary of Environmental CapEx Debt or Necessary CapEx Debt (which Indebtedness may be secured to the extent provided in Section 6.02(bb)); provided that, prior to the incurrence of any such Environmental CapEx Debt or Necessary CapEx Debt, the Borrower shall deliver to the Administrative Agent an officers’ certificate by a Financial Officer designating such Indebtedness as Environmental CapEx Debt or Necessary CapEx Debt, as applicable;
(y) Indebtedness incurred by the Borrower and its Restricted Subsidiaries in good faith to invest in nuclear decommissioning trusts or to comply with decommissioning agreementsoutstanding; and
(zvii) all premiums (if any), interest (including post-petition interest), fees, expenses, charges, and additional or Indebtedness not yet due that arises pursuant to provisions in acquisition agreements relating to minimal contingent interest on obligations described purchase price adjustments in clauses (a) through (y) above. For purposes of determining compliance connection with this Section 6.01, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Indebtedness described in clauses (a) through (z) above, the Borrower shall, in its reasonable discretion, classify and reclassify or later divide, classify or reclassify such item of Indebtedness (or any portion thereof) and will only be required to include the amount and type of such Indebtedness in one or more of the above clauses.Permitted Acquisitions; and
Appears in 1 contract
Indebtedness and Preferred Stock. Directly (a) The Borrower -------------------------------- will not, nor will it permit any of its Subsidiaries (other than the CFN Subsidiaries, except at any time that loans or indirectlyadvances by the Borrower to any of the CFN Subsidiaries pursuant to Section 6.04(d) shall remain outstanding) to, create, incur, issue, assume, guarantee assume or otherwise become directly or indirectly liable, contingently or otherwise, with respect permit to exist any Indebtedness, and the Borrower will not issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock except forexcept:
(ai) the incurrence by the Borrower (and the Guarantee thereof by the Subsidiary Guarantors) of the Indebtedness created (and the Reimbursement Obligations with respect to Letters of Credit issued) under the Loan Documents;
(bii) Indebtedness existing on the Effective Date and set forth in Schedule 6.01, and any extensions, renewals or replacements of any such Indebtedness that (A) do not increase the outstanding principal amount thereof, (B) do not result in an earlier maturity date or decreased weighted average life thereof and (C) are consummated on terms and subject to conditions no more restrictive than are in existence with respect to such Indebtedness as of the Effective Date; provided, that any Indebtedness -------- owed by any of the CFN Subsidiaries to the Borrower or any Subsidiary pursuant to a Credit Support FacilityLoan Party shall not be reborrowed following repayment thereof;
(ciii) Indebtedness of any Loan Party to any other Loan Party;
(iv) Guarantees by the Borrower of Indebtedness of any other Subsidiary Loan Party permitted hereunder;
(v) Indebtedness of the Borrower Borrower, any Subsidiary Loan Party or any CFN Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and its Restricted Subsidiaries set forth any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on Schedule 6.01(c) (Funding);
(d) any such assets prior to the incurrence by acquisition thereof, and extensions, renewals and replacements of any such Indebtedness that do not increase the Borrower and its Restricted Subsidiaries (other than the NY Real Property Subsidiaries) of Additional Intercreditor Indebtednessoutstanding principal amount thereof; provided that (iA) no Default or Event of Default exists immediately prior to, or would exist immediately after giving effect to, the incurrence of any such Indebtedness and (ii) the Borrower shall be in compliance with the Financial Covenants for the Borrower’s most recently ended Test Period for which financial statements are publicly available immediately preceding the date on which any such Indebtedness is incurred on a pro forma basis (including a pro forma application of prior to or within 90 days -------- after such acquisition or the net proceeds therefrom), as if such additional Indebtedness (and any other Indebtedness incurred during such Test Period or from the end completion of such Test Period through the date on which such calculation is madeconstruction or improvement and (B) had been incurred at the beginning of the applicable Test Period and was outstanding on such calculation date; provided, further that if such Additional Intercreditor Indebtedness takes the form of a revolving credit facility, the tests (x) in the proviso above shall be met on the date such revolving loan commitments become effective, assuming the incurrence of the full committed amount of such revolving credit facility;
(e) the incurrence by (i) the Borrower of Indebtedness in respect of the Senior Notes, and if applicable, any Funds Availability Indebtedness and (ii) the Subsidiary Guarantors of Indebtedness in respect of the Senior Note Guarantees and if applicable, any Funds Availability Indebtedness Guarantees;
(f) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness represented by Attributable Debt, Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of design, construction, installation, repair, restoration, expansion or improvement or lease of property (real or personal), plant or equipment used in the business case of the Borrower or any of its Restricted Subsidiaries or incurred within 270 days after any of and the foregoingSubsidiary Loan Parties, in an the aggregate principal amount, including (without duplication) all Permitted Refinancing amount of Indebtedness incurred to refund, modify, extend, renew, refinance, replace, defease or discharge any Indebtedness incurred pursuant to permitted by this clause (f), v) shall not to exceed $600,000,000 1,000,000 at any time outstanding and (y) in the case of the CFN Subsidiaries, the aggregate principal amount of Indebtedness permitted by this clause (v) shall not exceed $2,000,000 at any time outstanding;
(gvi) Indebtedness of any Person that becomes a Subsidiary after the incurrence by the Borrower or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance, replace, defease, modify, extend, renew or discharge Indebtedness (other than intercompany Indebtedness) that was permitted by this Agreement to be incurred under clauses (b), (c), (e), (f), (o), (p) and (x) of this Section 6.01Effective Date; provided, however, that with respect to the NY Real Property Subsidiaries, such Permitted Refinancing Indebtedness shall be permitted only with respect to clauses (b), (c), (e), (f), (o) and (x) of this Section 6.01;
(h) the incurrence by the Borrower and the Restricted Subsidiaries of unsecured intercompany Indebtedness that constitutes an Investment permitted under Sections 6.05(g) or 6.05(j); provided, however, provided that (iA) if the Borrower or any Subsidiary Guarantor is the obligor on such Indebtedness exists at the time such -------- Person becomes a Subsidiary and the payee is not the Borrower created in contemplation of or in connection with such Person becoming a Subsidiary that is a Subsidiary Guarantor, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Secured Obligations (which subordination may be pursuant to an Intercompany Debt Subordination Agreement or any other agreement containing terms satisfactory to the Administrative Agent and the Collateral Agent executed and delivered by both the applicable borrower and lender); and (ii)(A) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Borrower or a Restricted Subsidiary and (B) any sale or other transfer the aggregate principal amount of any such Indebtedness to a Person that is not either the Borrower or a Restricted Subsidiary will be deemed, in each case, to constitute an incurrence of such Indebtedness by the Borrower or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (h)vi) shall not exceed $2,000,000 at any time outstanding;
(ivii) the issuance by any of the Borrower’s Restricted Subsidiaries Indebtedness not yet due that arises pursuant to the Borrower or provisions in acquisition agreements relating to any of its other Restricted Subsidiaries of shares of preferred stock; provided, however, that (i) any subsequent issuance or transfer of Equity Interests that results purchase price adjustments in any such preferred stock being held by a Person other than the Borrower or a Restricted Subsidiary and (ii) any sale or other transfer of any such preferred stock to a Person that is not either the Borrower or a Restricted Subsidiary will be deemed, in each case, to constitute an issuance of such preferred stock by such Restricted Subsidiary that was not permitted by this clause (i)connection with Permitted Acquisitions;
(jviii) the incurrence by the Borrower or any of its Restricted Subsidiaries of Commodity Hedging Obligations and Interest Rate/Currency Hedging Obligations, provided, however, that the NY Real Property Subsidiaries shall not incur Commodity Hedging Obligations or Interest Rate/Currency Hedging Obligations other than pursuant to FERC 205 Contracts;
(k) the Guarantee by the Borrower or any of the Subsidiary Guarantors of Indebtedness of the Borrower or a Restricted Subsidiary that was permitted to be incurred by another provision of this Section 6.01 (other than in respect of self insurance); provided that, (i) in each such case, if the Indebtedness being guaranteed is subordinated to the Secured Obligations hereunder, then the Guarantee shall be subordinated to the same extent as the Indebtedness guaranteed and (ii) in the case of Guarantees of Indebtedness incurred pursuant to Section 6.01(w), such Guarantees shall be subordinated on terms at least as restrictive as the subordination terms of the Senior Note Guarantees;
(l) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness arising from the honoring by a bank or other Financial Institution of a check, draft or similar instrument (except in the case of daylight overdrafts) inadvertently drawn against insufficient funds, so long as such Indebtedness is discharged within five Business Days;
(m) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness in respect of, bankers’ acceptances and performance bonds, bid bonds, appeal bonds, completion guarantees, bank guarantees, letters of credit, warehouse receipts and surety bonds provided by the Borrower or a Restricted Subsidiary in the ordinary course of business;
(n) the incurrence of Indebtedness that may be deemed to arise as a result of agreements of the Borrower or any Restricted Subsidiary providing for indemnification, adjustment of purchase price (including earn outs) or any similar obligations, in each case, incurred in connection with any Permitted Acquisition or Investment permitted pursuant to Sections 6.05(g), 6.05(h) and 6.05(j) or Asset Sale or other disposition not prohibited hereunder; provided that (i) in the case of any such Asset Sale or disposition, the aggregate maximum liability associated with such provisions may not exceed the gross proceeds (including non-cash proceeds) of such disposition and (ii) this clause (n) shall only apply to NY Real Property Subsidiaries in respect of Indebtedness constituting indemnification obligations arising from Asset Sales permitted under Section 6.04(b);
(o) the incurrence of Indebtedness of a Person or Indebtedness attaching to assets of a Person that, in either case, becomes a Restricted Subsidiary or Indebtedness attaching to assets that are acquired by the Borrower or any Restricted Subsidiary, in each case after the Funds Availability Date as the result of a Permitted Acquisition; provided that (i) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof, (ii) such Indebtedness is not guaranteed in any respect by the Borrower or any Restricted Subsidiary (other than any such Person that so becomes a Restricted Subsidiary) and (iii)(A) the Capital Stock of such Person are pledged to the Collateral Agent to the extent required under Section 5.10 and (B) such Person executes a supplement to each of the Security Documents (or alternative guarantee and security arrangements in relation to the Secured Obligations) to the extent required under Section 5.10;
(p) the incurrence by the Borrower (other than the NY Real Property Subsidiaries) of Indebtedness to finance a Permitted Acquisition; provided that (i) such Indebtedness is not guaranteed in any respect by any Person other than the Person acquired (the “acquired Person”) as a result of such Permitted Acquisition, and (ii)(A) the Borrower pledges the Capital Stock of such acquired Person to the Collateral Agent to the extent required under Section 5.10 and (B) such acquired Person executes a supplement to the Security Documents (or alternative guarantee and security arrangements in relation to the Secured Obligations) to the extent required under Section 5.10;
(q) the incurrence by the Borrower or any Restricted Subsidiary of Indebtedness consisting of (i) obligations to pay insurance premiums, (ii) self-insurance obligations or (iii) take-or-pay obligations contained in supply agreements, in each case arising in the ordinary course of business and not in connection with the borrowing of money or Hedging Obligations.
(r) [Intentionally omitted]
(s) Guarantee obligations in respect of any Investment permitted pursuant to Sections 6.05(a), 6.05(c), 6.05(d) (to the extent existing on the Funds Availability Date), 6.05(e), 6.05(g), 6.05(h), 6.05(j), 6.05(o), 6.05(p) and 6.05(q);
(t) Cash Management Obligations;
(u) Indebtedness representing (i) workers compensation claims, (ii) health, disability or other employee benefits and (iii) deferred compensation to employees, consultants or independent contractors of the Borrower and the Restricted Subsidiaries incurred in the ordinary course of business;
(v) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to current or former officers, managers, consultants, directors and employees (or their respective spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees) to finance the purchase or redemption of Capital Stock or Capital Stock Equivalents of the Borrower permitted by Section 6.06(b);
(w) additional unsecured Subordinated Indebtedness; provided that (i) such Indebtedness matures after, and does not require any scheduled amortization or other scheduled payments of principal prior to, the Revolving Credit Maturity Date; (ii) such Indebtedness is incurred by the Borrower; (iii) both immediately prior and after giving effect to the incurrence thereof, (A) no Default or Event of Default shall exist or result therefrom and (B) the Borrower and its Restricted Subsidiaries shall be in pro forma compliance with the Financial Covenants and (iv) to the extent that such incurrence of additional unsecured Indebtedness exceeds an aggregate principal amount of $20,000,000, the Borrower delivers a certificate of a Financial Officer to the Administrative Agent at least 2 Business Days prior to the incurrence of such unsecured Indebtedness stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirements of this clause (w);
(x) the incurrence by the Borrower or any Restricted Subsidiary of Environmental CapEx Debt or Necessary CapEx Debt (which Indebtedness may be secured to the extent provided in Section 6.02(bb)); provided that, prior to the incurrence of any such Environmental CapEx Debt or Necessary CapEx Debt, the Borrower shall deliver to the Administrative Agent an officers’ certificate by a Financial Officer designating such Indebtedness as Environmental CapEx Debt or Necessary CapEx Debt, as applicable;
(y) Indebtedness incurred by the Borrower and its Restricted Subsidiaries in good faith to invest in nuclear decommissioning trusts or to comply with decommissioning agreements; and
(z) all premiums (if any), interest (including post-petition interest), fees, expenses, charges, and additional or contingent interest on obligations described in clauses (a) through (y) above. For purposes of determining compliance with this Section 6.01, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Indebtedness described in clauses (a) through (z) above, the Borrower shall, in its reasonable discretion, classify and reclassify or later divide, classify or reclassify such item of Indebtedness (or any portion thereof) and will only be required to include the amount and type of such Indebtedness in one or more of the above clauses.
Appears in 1 contract
Indebtedness and Preferred Stock. Directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur”) any Indebtedness, and the Borrower will not issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock except for:
(a) the incurrence by the Borrower (and the Guarantee thereof by the Subsidiary Guarantors) of the Indebtedness created (and the Reimbursement Obligations reimbursement obligations with respect to Letters of Credit issued) under the Loan DocumentsDocuments and any Revolver Refinancing Indebtedness;
(b) Indebtedness of the Borrower or any Subsidiary pursuant to a Credit Support Facility;
(c) Indebtedness of the Borrower and its Restricted Subsidiaries set forth on Schedule 6.01(c) (Funding);
(d) the incurrence by the Borrower and its Restricted Subsidiaries (other than the NY Real Property Subsidiaries) of Additional Intercreditor Indebtedness; provided that (i) no Default or Event of Default exists immediately prior to, or would exist immediately after giving effect to, the incurrence of any such Indebtedness and (ii) the Borrower shall be in compliance with the Financial Covenants for the Borrower’s most recently ended Test Period for which financial statements are publicly available immediately preceding the date on which any such Indebtedness is incurred on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if such additional Indebtedness (and any other Indebtedness incurred during such Test Period or from the end of such Test Period through the date on which such calculation is made) had been incurred at the beginning of the applicable Test Period and was outstanding on such calculation date; provided, further that if such Additional Intercreditor Indebtedness takes the form of a revolving credit facility, the tests in the proviso above shall be met on the date such revolving loan commitments become effective, assuming the incurrence of the full committed amount of such revolving credit facilityExisting Indebtedness;
(ec) the incurrence by (i) the Borrower of Indebtedness in respect of the Senior Notes, and if applicable, any Funds Availability Indebtedness and (ii) the Subsidiary Guarantors of Indebtedness in respect represented by the Senior Notes issued on or prior to the Closing Date and the related Guarantees of the Senior Note Guarantees and if applicable, any Funds Availability Indebtedness GuaranteesSubsidiary Guarantors thereof;
(fd) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness represented by Attributable Debt, Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of design, construction, installation, repair, restoration, expansion installation or improvement or lease of property (real or personal), plant or equipment used in the business of the Borrower or any of its Restricted Subsidiaries or incurred within 270 days after any of the foregoing, in an aggregate principal amount, including (without duplication) all Permitted Refinancing Indebtedness incurred to refund, modify, extend, renew, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (fd), not to exceed $600,000,000 400,000,000 at any time outstanding;
(ge) the incurrence by the Borrower or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance, replace, defease, modify, extend, renew defease or discharge Indebtedness (other than intercompany Indebtedness) that was permitted by this Agreement to be incurred under clauses (b), (c), (e), (f), (o), (p) and (x) of this Section 6.01; provided, however, that with respect to the NY Real Property Subsidiaries, such Permitted Refinancing Indebtedness shall be permitted only with respect to clauses (b), (cd), (e), (fk), (om), (p), (q), (r) and or (xs) of this Section 6.01;
(hf) the incurrence by the Borrower and the Restricted Subsidiaries of unsecured intercompany Indebtedness that constitutes an Investment permitted under Sections 6.05(g) or 6.05(j)Indebtedness; provided, however, that (iA) if the Borrower or any Subsidiary Guarantor is the obligor on such Indebtedness and the payee is not the Borrower or a Subsidiary that is a Subsidiary Guarantor, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Secured Guaranteed Obligations hereunder (which subordination may be pursuant to an Intercompany Debt Affiliate Subordination Agreement or any other agreement containing terms satisfactory with respect to the subordination of the obligations thereunder that are substantially the same as the Affiliate Subordination Agreement or are otherwise reasonably acceptable to the Administrative Agent and the Collateral Agent Agent, in each case, executed and delivered by both the applicable borrower and lender); and (ii)(AB)(x) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Borrower or a Restricted Subsidiary and (By) any sale or other transfer of any such Indebtedness to a Person that is not either the Borrower or a Restricted Subsidiary will be deemed, in each case, to constitute an incurrence of such Indebtedness by the Borrower or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (hf);
(ig) the issuance by any of the Borrower’s Restricted Subsidiaries to the Borrower or to any of its other Restricted Subsidiaries of shares of preferred stock; provided, however, that (i) any subsequent issuance or transfer of Equity Interests that results in any such preferred stock being held by a Person other than the Borrower or a Restricted Subsidiary and (ii) any sale or other transfer of any such preferred stock to a Person that is not either the Borrower or a Restricted Subsidiary will be deemed, in each case, to constitute an issuance of such preferred stock by such Restricted Subsidiary that was not permitted by this clause (ig);
(jh) the incurrence by the Borrower or any of its Restricted Subsidiaries of Commodity Hedging Obligations and Interest Rate/Currency Hedging Obligations, provided, however, that the NY Real Property Subsidiaries shall not incur Commodity Hedging Obligations or Interest Rate/Currency Hedging Obligations other than pursuant to FERC 205 Contracts;
(ki) the Guarantee by (i) the Borrower or any of the Subsidiary Guarantors of Indebtedness of the Borrower or a Restricted Subsidiary that was permitted to be incurred by another provision of this Section 6.01 (other than in respect clause (m) and (w)); (ii) any of self insurance)the Excluded Project Subsidiaries of Indebtedness of any other Excluded Project Subsidiary; (iii) any of the Excluded Foreign Subsidiaries of Indebtedness of any other Excluded Foreign Subsidiary and (iv) the Borrower of Permitted Itiquira Indebtedness; provided that such Guarantee of Permitted Itiquira Indebtedness matures or otherwise terminates within one year of the incurrence thereof; provided that, (i) in each such case, if the Indebtedness being guaranteed is subordinated to the Secured Guaranteed Obligations hereunder, then the Guarantee shall be subordinated to the same extent as the Indebtedness guaranteed and (ii) in the case of Guarantees of Indebtedness incurred pursuant to Section 6.01(w), such Guarantees shall be subordinated on terms at least as restrictive as the subordination terms of the Senior Note Guaranteesguaranteed;
(lj) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness arising from the honoring by a bank or other Financial Institution financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) inadvertently drawn against insufficient funds, so long as such Indebtedness is discharged covered within five Business Days;
(mk) the Xcel Note;
(l) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness in respect ofof workers’ compensation claims, self-insurance obligations, bankers’ acceptances acceptance and performance bonds, bid bonds, appeal bonds, completion guarantees, bank guarantees, letters of credit, warehouse receipts and surety bonds provided by the Borrower or a Restricted Subsidiary in the ordinary course of business;
(m) the incurrence of Additional Non-Recourse Indebtedness by any Excluded Project Subsidiary;
(n) the incurrence of Indebtedness that may be deemed to arise as a result of agreements of the Borrower or any Restricted Subsidiary providing for indemnification, adjustment of purchase price (including earn outs) or any similar obligations, in each case, incurred in connection with the acquisition or disposition of any Permitted Acquisition business, assets or Investment permitted pursuant to Sections 6.05(g)Equity Interests of any Subsidiary or any business, 6.05(h) and 6.05(j) assets or Asset Sale Equity Interests acquired by the Borrower or other disposition not prohibited hereunderany Restricted Subsidiary; provided that (i) in the case of any such Asset Sale or disposition, disposition the aggregate maximum liability associated with such provisions may not exceed the gross proceeds (including non-cash proceeds) of such disposition and (ii) this clause (n) shall only apply to NY Real Property Subsidiaries in respect of Indebtedness constituting indemnification obligations arising from Asset Sales permitted under Section 6.04(b)disposition;
(o) the incurrence by the Borrower or any Restricted Subsidiary of Indebtedness represented by letters of credit, guarantees of Indebtedness or other similar instruments to the extent (A) such instruments, including instruments supporting Commodity Hedging Obligations or Interest Rate/Currency Hedging Obligations, are cash collateralized and (B) the Borrower or such Restricted Subsidiary would not have been prohibited from expending the funds used to cash collateralize such instrument directly under the terms of this Agreement;
(p) the incurrence by the Borrower and/or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (p), not to exceed the sum of (i) $750,000,000 and (ii)(A) 50% of (1) the aggregate amount of all consideration paid or costs incurred in connection with the acquisition, expansion, upgrading or construction, after the Closing Date, of any assets of the Borrower and the Restricted Subsidiaries constituting Collateral (any such assets, “Basket Assets”) (excluding fuel and consumable inventory purchased in the ordinary course of business) minus (2) any Indebtedness incurred pursuant to Section 6.01(r) in respect of any such Basket Assets less (B) 50% of the consideration paid or costs incurred in respect of Basket Assets that are sold or otherwise disposed of by the Borrower and the Restricted Subsidiaries after the Closing Date to the extent the proceeds of such sale or other disposition are not actually applied in accordance with Section 2.13(b); provided that (x) the Borrower shall be in compliance, on a pro forma basis after giving effect to the incurrence of such Indebtedness, with the covenants set forth in Sections 6.13 and 6.14, as if such Indebtedness had been incurred on the first day of the applicable Test Period; (y) no more than $375,000,000 (less the aggregate principal amount of any New Loan Commitments obtained pursuant to Section 2.25) in aggregate principal amount of Indebtedness incurred pursuant to this clause (p) may be secured by first priority and/or second priority Liens on the Collateral, and any such Liens must be granted in favor of the Collateral Trustee in the manner set forth in, and be otherwise subject to (and in compliance with), the Collateral Trust Agreement; and provided, further that in connection with the incurrence of Indebtedness secured by first priority Liens pursuant to this clause (p), the requirements of Section 9.19 shall have been satisfied to the extent applicable;
(q) the incurrence of Indebtedness of a Person or Indebtedness attaching to assets of a Person that, in either case, becomes a Restricted Subsidiary or Indebtedness attaching to assets that are acquired by the Borrower or any Restricted Subsidiary, in each case after the Funds Availability Closing Date as the result of a Permitted Acquisition; provided that (i) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof, (ii) such Indebtedness is not guaranteed in any respect by the Borrower or any Restricted Subsidiary (other than any such Person that so becomes a Restricted Subsidiary) except to the extent that such Guarantee is permitted to be incurred (and is so incurred) pursuant to clause (p) of this Section 6.01 and (iii)(A) the Capital Stock Equity Interests of such Person are pledged to the Collateral Administrative Agent to the extent required under Section 5.10 5.09 and (B) such Person executes a supplement to each of the Security Documents (or alternative guarantee and security arrangements in relation to the Secured Obligations) to the extent required under Section 5.105.09;
(pr) the incurrence by the Borrower (other than the NY Real Property Subsidiaries) or any Restricted Subsidiary of Indebtedness to finance a Permitted Acquisition; provided that (i) such Indebtedness is not guaranteed in any respect by any Person Restricted Subsidiary (other than the any Person acquired (the “acquired Person”) as a result of such Permitted Acquisition) or by the Borrower except to the extent that such Guarantee is permitted to be incurred (and is so incurred) pursuant to clause (p) of this Section 6.01, and (ii)(A) the Borrower pledges the Capital Stock Equity Interests of such acquired Person to the Collateral Administrative Agent to the extent required under Section 5.10 5.09 and (B) such acquired Person executes a supplement to the Security Documents (or alternative guarantee and security arrangements in relation to the Secured Obligations) to the extent required under Section 5.105.09;
(qs) the incurrence by the Borrower and/or any of its Restricted Subsidiaries of unsecured Indebtedness, in each case, (i) that does not mature, and is not subject to mandatory repurchase, redemption or amortization (other than pursuant to customary asset sale or change of control provisions requiring redemption or repurchase only if and to the extent permitted by this Agreement) prior to the date that is six months after the Term Loan Maturity Date, (ii) that is not exchangeable or convertible into Indebtedness of the Borrower (other than other Indebtedness permitted by this clause (s)) or any Restricted Subsidiary or any preferred stock or other Equity Interest and (iii) solely to the extent the Net Cash Proceeds thereof are used to prepay Term Loans pursuant to and to the extent required by Section 2.13(c);
(t) the incurrence by the Borrower or any Restricted Subsidiary of Indebtedness consisting of (i) obligations to pay insurance premiums, premiums or (ii) self-insurance obligations or (iii) take-or-pay obligations contained in supply agreements, in each case arising in the ordinary course of business and not in connection with the borrowing of money or Hedging Obligations.
(r) [Intentionally omitted]
(s) Guarantee obligations in respect of any Investment permitted pursuant to Sections 6.05(a), 6.05(c), 6.05(d) (to the extent existing on the Funds Availability Date), 6.05(e), 6.05(g), 6.05(h), 6.05(j), 6.05(o), 6.05(p) and 6.05(q);
(t) Cash Management ObligationsAgreements;
(u) Indebtedness representing (i) workers compensation claims, (ii) health, disability or other employee benefits and (iii) deferred compensation to employees, consultants or independent contractors the issuance by any of the Borrower and Excluded Subsidiaries of shares of preferred stock the Restricted Subsidiaries incurred proceeds of which are used solely to finance the development, construction or acquisition by such Subsidiary of fixed or capital assets useful in the ordinary course conduct of businessthe Permitted Business;
(v) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to current or former officers, managers, consultants, directors and employees (or their respective spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees) to finance the purchase or redemption of Capital Stock or Capital Stock Equivalents of the Borrower permitted by Section 6.06(b);
(w) additional unsecured Indebtedness; provided that (i) such Indebtedness matures after, and does not require any scheduled amortization or other scheduled payments of principal prior to, the Revolving Credit Maturity Date; (ii) such Indebtedness is incurred by the Borrower; (iii) both immediately prior and after giving effect to the incurrence thereof, (A) no Default or Event of Default shall exist or result therefrom and (B) the Borrower and its Restricted Subsidiaries shall be in pro forma compliance with the Financial Covenants and (iv) to the extent that such incurrence of additional unsecured Indebtedness exceeds an aggregate principal amount of $20,000,000, the Borrower delivers a certificate of a Financial Officer to the Administrative Agent at least 2 Business Days prior to the incurrence of such unsecured Indebtedness stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirements of this clause (w);
(x) the incurrence by the Borrower or any Restricted Subsidiary of Environmental CapEx Debt or Necessary CapEx Debt (which Indebtedness may be secured Debt, in an aggregate principal amount not to the extent provided in Section 6.02(bb))exceed $200,000,000 at any time outstanding; provided that, prior to the incurrence of any such Environmental CapEx Debt or Necessary CapEx Debt, the Borrower shall deliver to the Administrative Agent an officers’ certificate by a Financial Officer designating such Indebtedness as Environmental CapEx Debt or Necessary CapEx Debt, as applicable;
(yw) Indebtedness incurred by the Borrower and its Restricted Subsidiaries in good faith to invest in nuclear decommissioning trusts or to comply with decommissioning agreementsincurrence of Permitted Itiquira Indebtedness; and
(zx) all premiums (if any), interest (including post-petition interest), fees, expenses, charges, and additional or contingent interest on obligations described in clauses (a) through (y) above. For purposes of determining compliance with this Section 6.01, in the event that an item incurrence of Indebtedness meets under the criteria of more than one of Existing Texas Genco Credit Agreement and the categories of Indebtedness described in clauses (a) through (z) above, the Borrower shall, in its reasonable discretion, classify and reclassify or later divide, classify or reclassify such item of Indebtedness (or any portion thereof) and will only be required to include the amount and type of Existing Texas Genco Notes; provided that such Indebtedness is repaid in one or more of full (other than indemnification and other contingent obligations not yet due and payable) pursuant to Section 5.11 hereof no later than five days after the above clausesClosing Date.
Appears in 1 contract
Samples: Credit Agreement (NRG Energy, Inc.)
Indebtedness and Preferred Stock. Directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur”) any Indebtedness, and the Borrower will not issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock except for:
(a) the incurrence by the Borrower (and the Guarantee thereof by the Subsidiary Guarantors) of the Indebtedness created (and the Reimbursement Obligations reimbursement obligations with respect to Letters of Credit issued) under the Loan DocumentsDocuments and any Revolver Refinancing Indebtedness;
(b) Indebtedness of the Borrower or any Subsidiary pursuant to a Credit Support Facility;
(c) Indebtedness of the Borrower and its Restricted Subsidiaries set forth on Schedule 6.01(c) (Funding);
(d) the incurrence by the Borrower and its Restricted Subsidiaries (other than the NY Real Property Subsidiaries) of Additional Intercreditor Indebtedness; provided that (i) no Default or Event of Default exists immediately prior to, or would exist immediately after giving effect to, the incurrence of any such Indebtedness and (ii) the Borrower shall be in compliance with the Financial Covenants for the Borrower’s most recently ended Test Period for which financial statements are publicly available immediately preceding the date on which any such Indebtedness is incurred on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if such additional Indebtedness (and any other Indebtedness incurred during such Test Period or from the end of such Test Period through the date on which such calculation is made) had been incurred at the beginning of the applicable Test Period and was outstanding on such calculation date; provided, further that if such Additional Intercreditor Indebtedness takes the form of a revolving credit facility, the tests in the proviso above shall be met on the date such revolving loan commitments become effective, assuming the incurrence of the full committed amount of such revolving credit facilityExisting Indebtedness;
(ec) the incurrence by (i) the Borrower of Indebtedness in respect of the Senior Notes, and if applicable, any Funds Availability Indebtedness and (ii) the Subsidiary Guarantors of Indebtedness in respect represented by the Senior Notes issued on or prior to the Restatement Date and the related Guarantees of the Senior Note Guarantees and if applicable, any Funds Availability Indebtedness GuaranteesSubsidiary Guarantors thereof;
(fd) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness represented by Attributable Debt, Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of design, construction, installation, repair, restoration, expansion installation or improvement or lease of property (real or personal), plant or equipment used in the business of the Borrower or any of its Restricted Subsidiaries or incurred within 270 days after any of the foregoing, in an aggregate principal amount, including (without duplication) all Permitted Refinancing Indebtedness incurred to refund, modify, extend, renew, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (fd), not to exceed $600,000,000 400,000,000 at any time outstanding;
(ge) the incurrence by the Borrower or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance, replace, defease, modify, extend, renew defease or discharge Indebtedness (other than intercompany Indebtedness) that was permitted by this Agreement to be incurred under clauses (b), (c), (e), (f), (o), (p) and (x) of this Section 6.01; provided, however, that with respect to the NY Real Property Subsidiaries, such Permitted Refinancing Indebtedness shall be permitted only with respect to clauses (b), (cd), (e), (fk), (om), clause (B) and of clause (xp), (q), (r) or (s) of this Section 6.01;
(hf) the incurrence by the Borrower and the Restricted Subsidiaries of unsecured intercompany Indebtedness that constitutes an Investment permitted under Sections 6.05(g) or 6.05(j)Indebtedness; provided, however, that (iA) if the Borrower or any Subsidiary Guarantor is the obligor on such Indebtedness and the payee is not the Borrower or a Subsidiary that is a Subsidiary Guarantor, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Secured Guaranteed Obligations hereunder (which subordination may be pursuant to an Intercompany Debt Affiliate Subordination Agreement or any other agreement containing terms satisfactory with respect to the subordination of the obligations thereunder that are substantially the same as the Affiliate Subordination Agreement or are otherwise reasonably acceptable to the Administrative Agent and the Collateral Agent Agent, in each case, executed and delivered by both the applicable borrower and lender); and (ii)(AB)(x) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Borrower or a Restricted Subsidiary and (By) any sale or other transfer of any such Indebtedness to a Person that is not either the Borrower or a Restricted Subsidiary will be deemed, in each case, to constitute an incurrence of such Indebtedness by the Borrower or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (hf);
(ig) the issuance by any of the Borrower’s Restricted Subsidiaries to the Borrower or to any of its other Restricted Subsidiaries of shares of preferred stock; provided, however, that (i) any subsequent issuance or transfer of Equity Interests that results in any such preferred stock being held by a Person other than the Borrower or a Restricted Subsidiary and (ii) any sale or other transfer of any such preferred stock to a Person that is not either the Borrower or a Restricted Subsidiary will be deemed, in each case, to constitute an issuance of such preferred stock by such Restricted Subsidiary that was not permitted by this clause (ig);
(jh) the incurrence by the Borrower or any of its Restricted Subsidiaries of Commodity Hedging Obligations and Interest Rate/Currency Hedging Obligations, provided, however, that the NY Real Property Subsidiaries shall not incur Commodity Hedging Obligations or Interest Rate/Currency Hedging Obligations other than pursuant to FERC 205 Contracts;
(ki) the Guarantee by (i) the Borrower or any of the Subsidiary Guarantors of Indebtedness of the Borrower or a Restricted Subsidiary that was permitted to be incurred by another provision of this Section 6.01 (other than in respect clause (m) and (w)); (ii) any of self insurance)the Excluded Project Subsidiaries of Indebtedness of any other Excluded Project Subsidiary; (iii) any of the Excluded Foreign Subsidiaries of Indebtedness of any other Excluded Foreign Subsidiary and (iv) the Borrower of Permitted Itiquira Indebtedness; provided that such Guarantee of Permitted Itiquira Indebtedness matures or otherwise terminates within one year of the incurrence thereof; provided that, (i) in each such case, if the Indebtedness being guaranteed is subordinated to the Secured Guaranteed Obligations hereunder, then the Guarantee shall be subordinated to the same extent as the Indebtedness guaranteed and (ii) in the case of Guarantees of Indebtedness incurred pursuant to Section 6.01(w), such Guarantees shall be subordinated on terms at least as restrictive as the subordination terms of the Senior Note Guaranteesguaranteed;
(lj) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness arising from the honoring by a bank or other Financial Institution financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) inadvertently drawn against insufficient funds, so long as such Indebtedness is discharged covered within five Business Days;
(mk) [Reserved];
(l) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness in respect ofof workers’ compensation claims, self-insurance obligations, bankers’ acceptances acceptance and performance bonds, bid bonds, appeal bonds, completion guarantees, bank guarantees, letters of credit, warehouse receipts and surety bonds provided by the Borrower or a Restricted Subsidiary in the ordinary course of business;
(m) the incurrence of Additional Non-Recourse Indebtedness by any Excluded Project Subsidiary;
(n) the incurrence of Indebtedness that may be deemed to arise as a result of agreements of the Borrower or any Restricted Subsidiary providing for indemnification, adjustment of purchase price (including earn outs) or any similar obligations, in each case, incurred in connection with the acquisition or disposition of any Permitted Acquisition business, assets or Investment permitted pursuant to Sections 6.05(g)Equity Interests of any Subsidiary or any business, 6.05(h) and 6.05(j) assets or Asset Sale Equity Interests acquired by the Borrower or other disposition not prohibited hereunderany Restricted Subsidiary; provided that (i) in the case of any such Asset Sale or disposition, disposition the aggregate maximum liability associated with such provisions may not exceed the gross proceeds (including non-cash proceeds) of such disposition and (ii) this clause (n) shall only apply to NY Real Property Subsidiaries in respect of Indebtedness constituting indemnification obligations arising from Asset Sales permitted under Section 6.04(b)disposition;
(o) the incurrence by the Borrower or any Restricted Subsidiary of Indebtedness represented by letters of credit, guarantees of Indebtedness or other similar instruments to the extent (A) such instruments, including instruments supporting Commodity Hedging Obligations or Interest Rate/Currency Hedging Obligations, are cash collateralized and (B) the Borrower or such Restricted Subsidiary would not have been prohibited from expending the funds used to cash collateralize such instrument directly under the terms of this Agreement;
(p) the incurrence by the Borrower and/or any of its Restricted Subsidiaries of (A) additional Indebtedness if (1) such Indebtedness does not mature, and is not subject to mandatory repurchase, redemption or amortization (other than pursuant to customary asset sale or change of control provisions requiring redemption or repurchase only if and to the extent permitted by this Agreement and other than amortization payments of up to 1% of the initial principal amount per annum) prior to the date that is six months after the Term Loan Maturity Date, provided, however, that the restrictions in this Section 6.01(p)(A)(1) shall not apply to any Indebtedness in the form of Letters of Credit, any other letters of credit and any Indebtedness that is secured by any assets of the Borrower or any Restricted Subsidiary, (2) no Default or Event of Default exists immediately prior to, or would exist immediately after giving effect to, the incurrence of such Indebtedness, (3) the Consolidated Leverage Ratio for the Borrower’s most recently ended Test Period for which financial statements are publicly available immediately preceding the date on which such additional Indebtedness is incurred would have been no more than 5.25 to 1.00 (or, at any time after December 31, 2007, 5.00 to 1.00), determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if such additional Indebtedness (and any other Indebtedness incurred during such Test Period or from the end of such Test Period through the date on which such calculation is made) had been incurred at the beginning of the applicable Test Period and was outstanding on such calculation date and (4) the Consolidated Interest Coverage Ratio for the Borrower’s most recently ended Test Period for which financial statements are publicly available immediately preceding the date on which such additional Indebtedness is incurred would have been at least 2.0 to 1.0, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if such additional Indebtedness (and any other Indebtedness incurred during such Test Period or from the end of such Test Period through the date on which such calculation is made) had been incurred at the beginning of the applicable Test Period and (B) additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (p)(B), not to exceed $250,000,000; provided that in the case of any incurrence of any Indebtedness pursuant to this clause (p), (x) the Borrower shall be in compliance as of the date of such incurrence, on a pro forma basis after giving effect to the incurrence of such Indebtedness, with the covenants set forth in Sections 6.13 and 6.14, as if such Indebtedness (and any other Indebtedness incurred during such Test Period or from the end of such Test Period through the date such calculation is made) had been incurred on the first day of the applicable Test Period; and (y) no more than the greater of (1) $600,000,000 and (2) an amount equal to the Consolidated EBITDA of the Borrower for the period of four consecutive fiscal quarters most recently ended on or prior to the date on which such Indebtedness is incurred multiplied by 25% (less, in the case of each of clause (1) and clause (2), the aggregate principal amount of any New Loan Commitments obtained pursuant to Section 2.25) in aggregate principal amount of Indebtedness incurred pursuant to this clause (p) may be secured by first priority and/or second priority Liens on the Collateral, and any such Liens must be granted in favor of the Collateral Trustee in the manner set forth in, and be otherwise subject to (and in compliance with), the Collateral Trust Agreement; and provided, further that in connection with the incurrence of Indebtedness secured by first priority Liens pursuant to this clause (p), the requirements of Section 9.19 shall have been satisfied to the extent applicable;
(q) the incurrence of Indebtedness of a Person or Indebtedness attaching to assets of a Person that, in either case, becomes a Restricted Subsidiary or Indebtedness attaching to assets that are acquired by the Borrower or any Restricted Subsidiary, in each case after the Funds Availability Closing Date as the result of a Permitted Acquisition; provided that (i) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof, (ii) such Indebtedness is not guaranteed in any respect by the Borrower or any Restricted Subsidiary (other than any such Person that so becomes a Restricted Subsidiary) except to the extent that such Guarantee is permitted to be incurred (and is so incurred) pursuant to clause (p) of this Section 6.01 and (iii)(A) the Capital Stock Equity Interests of such Person are pledged to the Collateral Administrative Agent to the extent required under Section 5.10 5.09 and (B) such Person executes a supplement to each of the Security Documents (or alternative guarantee and security arrangements in relation to the Secured Obligations) to the extent required under Section 5.105.09;
(pr) the incurrence by the Borrower (other than the NY Real Property Subsidiaries) or any Restricted Subsidiary of Indebtedness to finance a Permitted Acquisition; provided that (i) such Indebtedness is not guaranteed in any respect by any Person Restricted Subsidiary (other than the any Person acquired (the “acquired Person”) as a result of such Permitted Acquisition) or by the Borrower except to the extent that such Guarantee is permitted to be incurred (and is so incurred) pursuant to clause (p) of this Section 6.01, and (ii)(A) the Borrower pledges the Capital Stock Equity Interests of such acquired Person to the Collateral Administrative Agent to the extent required under Section 5.10 5.09 and (B) such acquired Person executes a supplement to the Security Documents (or alternative guarantee and security arrangements in relation to the Secured Obligations) to the extent required under Section 5.105.09;
(qs) the incurrence by the Borrower and/or any of its Restricted Subsidiaries of unsecured Indebtedness, in each case, (i) that does not mature, and is not subject to mandatory repurchase, redemption or amortization (other than pursuant to customary asset sale or change of control provisions requiring redemption or repurchase only if and to the extent permitted by this Agreement) prior to the date that is six months after the Term Loan Maturity Date, (ii) that is not exchangeable or convertible into Indebtedness of the Borrower (other than other Indebtedness permitted by this clause (s)) or any Restricted Subsidiary or any preferred stock or other Equity Interest and (iii) solely to the extent the Net Cash Proceeds thereof are used to prepay Term Loans pursuant to and to the extent required by Section 2.13(c);
(t) the incurrence by the Borrower or any Restricted Subsidiary of Indebtedness consisting of (i) obligations to pay insurance premiums, premiums or (ii) self-insurance obligations or (iii) take-or-pay obligations contained in supply agreements, in each case arising in the ordinary course of business and not in connection with the borrowing of money or Hedging Obligations.
(r) [Intentionally omitted]
(s) Guarantee obligations in respect of any Investment permitted pursuant to Sections 6.05(a), 6.05(c), 6.05(d) (to the extent existing on the Funds Availability Date), 6.05(e), 6.05(g), 6.05(h), 6.05(j), 6.05(o), 6.05(p) and 6.05(q);
(t) Cash Management ObligationsAgreements;
(u) Indebtedness representing (i) workers compensation claims, (ii) health, disability or other employee benefits and (iii) deferred compensation to employees, consultants or independent contractors the issuance by any of the Borrower and Excluded Subsidiaries of shares of preferred stock the Restricted Subsidiaries incurred proceeds of which are used solely to finance the development, construction or acquisition by such Subsidiary of fixed or capital assets useful in the ordinary course conduct of businessthe Permitted Business;
(v) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to current or former officers, managers, consultants, directors and employees (or their respective spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees) to finance the purchase or redemption of Capital Stock or Capital Stock Equivalents of the Borrower permitted by Section 6.06(b);
(w) additional unsecured Indebtedness; provided that (i) such Indebtedness matures after, and does not require any scheduled amortization or other scheduled payments of principal prior to, the Revolving Credit Maturity Date; (ii) such Indebtedness is incurred by the Borrower; (iii) both immediately prior and after giving effect to the incurrence thereof, (A) no Default or Event of Default shall exist or result therefrom and (B) the Borrower and its Restricted Subsidiaries shall be in pro forma compliance with the Financial Covenants and (iv) to the extent that such incurrence of additional unsecured Indebtedness exceeds an aggregate principal amount of $20,000,000, the Borrower delivers a certificate of a Financial Officer to the Administrative Agent at least 2 Business Days prior to the incurrence of such unsecured Indebtedness stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirements of this clause (w);
(x) the incurrence by the Borrower or any Restricted Subsidiary of Environmental CapEx Debt or Necessary CapEx Debt (which Indebtedness may be secured Debt, in an aggregate principal amount not to the extent provided in Section 6.02(bb))exceed $200,000,000 at any time outstanding; provided that, prior to the incurrence of any such Environmental CapEx Debt or Necessary CapEx Debt, the Borrower shall deliver to the Administrative Agent an officers’ certificate by a Financial Officer designating such Indebtedness as Environmental CapEx Debt or Necessary CapEx Debt, as applicable;
(yw) Indebtedness incurred by the Borrower and its Restricted Subsidiaries in good faith to invest in nuclear decommissioning trusts or to comply with decommissioning agreementsincurrence of Permitted Itiquira Indebtedness; and
(zx) all premiums (if any)Indebtedness consisting of representations, interest (including post-petition interest)warranties, fees, expenses, chargescovenants and indemnities made by, and additional or contingent interest on repurchase, payment and other obligations described in clauses (a) through (y) above. For purposes of determining compliance with this Section 6.01, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Indebtedness described in clauses (a) through (z) aboveof, the Borrower shall, in its reasonable discretion, classify and reclassify or later divide, classify or reclassify such item of Indebtedness (or any portion thereof) Restricted Subsidiary in connection with a South Central Securitization permitted by Section 6.04; provided that such representations, warranties, covenants, indemnities and will only be required repurchase, payment and other obligations are of the type customarily included in securitizations of accounts receivable intended to include the amount and type constitute true sales of such Indebtedness in one or more of the above clausesaccounts receivable to a securitization vehicle.
Appears in 1 contract
Samples: Credit Agreement (NRG Energy, Inc.)
Indebtedness and Preferred Stock. Directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur”) any Indebtedness, and the Borrower will not issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock except for:
(a) the incurrence by the Borrower (and the Guarantee thereof by the Subsidiary Guarantors) of the Indebtedness created (and the Reimbursement Obligations reimbursement obligations with respect to Letters of Credit issued) under the Loan DocumentsDocuments and any Revolver Refinancing Indebtedness;
(b) Indebtedness of the Borrower or any Subsidiary pursuant to a Credit Support Facility;
(c) Indebtedness of the Borrower and its Restricted Subsidiaries set forth on Schedule 6.01(c) (Funding);
(d) the incurrence by the Borrower and its Restricted Subsidiaries (other than the NY Real Property Subsidiaries) of Additional Intercreditor Indebtedness; provided that (i) no Default or Event of Default exists immediately prior to, or would exist immediately after giving effect to, the incurrence of any such Indebtedness and (ii) the Borrower shall be in compliance with the Financial Covenants for the Borrower’s most recently ended Test Period for which financial statements are publicly available immediately preceding the date on which any such Indebtedness is incurred on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if such additional Indebtedness (and any other Indebtedness incurred during such Test Period or from the end of such Test Period through the date on which such calculation is made) had been incurred at the beginning of the applicable Test Period and was outstanding on such calculation date; provided, further that if such Additional Intercreditor Indebtedness takes the form of a revolving credit facility, the tests in the proviso above shall be met on the date such revolving loan commitments become effective, assuming the incurrence of the full committed amount of such revolving credit facilityExisting Indebtedness;
(ec) the incurrence by (i) the Borrower of Indebtedness in respect of the Senior Notes, and if applicable, any Funds Availability Indebtedness and (ii) the Subsidiary Guarantors of Indebtedness in respect represented by the Senior Notes issued on or prior to the First Restatement Date and the related Guarantees of the Senior Note Guarantees and if applicable, any Funds Availability Indebtedness GuaranteesSubsidiary Guarantors thereof;
(fd) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness represented by Attributable Debt, Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of design, construction, installation, repair, restoration, expansion installation or improvement or lease of property (real or personal), plant or equipment used in the business of the Borrower or any of its Restricted Subsidiaries or incurred within 270 days after any of the foregoing, in an aggregate principal amount, including (without duplication) all Permitted Refinancing Indebtedness incurred to refund, modify, extend, renew, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (fd), not to exceed $600,000,000 400,000,000 at any time outstanding;
(ge) the incurrence by the Borrower or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance, replace, defease, modify, extend, renew defease or discharge Indebtedness (other than intercompany Indebtedness) that was permitted by this Agreement to be incurred under clauses (b), (c), (e), (f), (o), (p) and (x) of this Section 6.01; provided, however, that with respect to the NY Real Property Subsidiaries, such Permitted Refinancing Indebtedness shall be permitted only with respect to clauses (b), (cd), (e), (fk), (om), clause (B) and of clause (xp), (q), (r) or (s) of this Section 6.01;
(hf) the incurrence by the Borrower and the Restricted Subsidiaries of unsecured intercompany Indebtedness that constitutes an Investment permitted under Sections 6.05(g) or 6.05(j)Indebtedness; provided, however, that (iA) if the Borrower or any Subsidiary Guarantor is the obligor on such Indebtedness and the payee is not the Borrower or a Subsidiary that is a Subsidiary Guarantor, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Secured Guaranteed Obligations hereunder (which subordination may be pursuant to an Intercompany Debt Affiliate Subordination Agreement or any other agreement containing terms satisfactory with respect to the subordination of the obligations thereunder that are substantially the same as the Affiliate Subordination Agreement or are otherwise reasonably acceptable to the Administrative Agent and the Collateral Agent Agent, in each case, executed and delivered by both the applicable borrower and lender); and (ii)(AB)(x) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Borrower or a Restricted Subsidiary and (By) any sale or other transfer of any such Indebtedness to a Person that is not either the Borrower or a Restricted Subsidiary will be deemed, in each case, to constitute an incurrence of such Indebtedness by the Borrower or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (hf);
(ig) the issuance by any of the Borrower’s Restricted Subsidiaries to the Borrower or to any of its other Restricted Subsidiaries of shares of preferred stock; provided, however, that (i) any subsequent issuance or transfer of Equity Interests that results in any such preferred stock being held by a Person other than the Borrower or a Restricted Subsidiary and (ii) any sale or other transfer of any such preferred stock to a Person that is not either the Borrower or a Restricted Subsidiary will be deemed, in each case, to constitute an issuance of such preferred stock by such Restricted Subsidiary that was not permitted by this clause (ig);
(jh) the incurrence by the Borrower or any of its Restricted Subsidiaries of Commodity Hedging Obligations, Eligible Commodity Hedging Obligations and Interest Rate/Currency Hedging Obligations, provided, however, that the NY Real Property Subsidiaries shall not incur Commodity Hedging Obligations or Interest Rate/Currency Hedging Obligations other than pursuant to FERC 205 Contracts;
(ki) the Guarantee by (i) the Borrower or any of the Subsidiary Guarantors of Indebtedness of the Borrower or a Restricted Subsidiary that was permitted to be incurred by another provision of this Section 6.01 (other than in respect clause (m) and (w)); (ii) any of self insurance)the Excluded Project Subsidiaries of Indebtedness of any other Excluded Project Subsidiary; (iii) any of the Excluded Foreign Subsidiaries of Indebtedness of any other Excluded Foreign Subsidiary and (iv) the Borrower of Permitted Itiquira Indebtedness; provided that such Guarantee of Permitted Itiquira Indebtedness matures or otherwise terminates within one year of the incurrence thereof; provided that, (i) in each such case, if the Indebtedness being guaranteed is subordinated to the Secured Guaranteed Obligations hereunder, then the Guarantee shall be subordinated to the same extent as the Indebtedness guaranteed and (ii) in the case of Guarantees of Indebtedness incurred pursuant to Section 6.01(w), such Guarantees shall be subordinated on terms at least as restrictive as the subordination terms of the Senior Note Guaranteesguaranteed;
(lj) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness arising from the honoring by a bank or other Financial Institution financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) inadvertently drawn against insufficient funds, so long as such Indebtedness is discharged covered within five Business Days;
(mk) [Reserved];
(l) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness in respect ofof workers’ compensation claims, self-insurance obligations, bankers’ acceptances acceptance and performance bonds, bid bonds, appeal bonds, completion guarantees, bank guarantees, letters of credit, warehouse receipts and surety bonds provided by the Borrower or a Restricted Subsidiary in the ordinary course of business;
(m) the incurrence of Additional Non-Recourse Indebtedness by any Excluded Project Subsidiary;
(n) the incurrence of Indebtedness that may be deemed to arise as a result of agreements of the Borrower or any Restricted Subsidiary providing for indemnification, adjustment of purchase price (including earn outs) or any similar obligations, in each case, incurred in connection with the acquisition or disposition of any Permitted Acquisition business, assets or Investment permitted pursuant to Sections 6.05(g)Equity Interests of any Subsidiary or any business, 6.05(h) and 6.05(j) assets or Asset Sale Equity Interests acquired by the Borrower or other disposition not prohibited hereunderany Restricted Subsidiary; provided that (i) in the case of any such Asset Sale or disposition, disposition the aggregate maximum liability associated with such provisions may not exceed the gross proceeds (including non-cash proceeds) of such disposition and (ii) this clause (n) shall only apply to NY Real Property Subsidiaries in respect of Indebtedness constituting indemnification obligations arising from Asset Sales permitted under Section 6.04(b)disposition;
(o) the incurrence by the Borrower or any Restricted Subsidiary of Indebtedness represented by letters of credit, guarantees of Indebtedness or other similar instruments to the extent (A) such instruments, including instruments supporting Commodity Hedging Obligations or Interest Rate/Currency Hedging Obligations, are cash collateralized and (B) the Borrower or such Restricted Subsidiary would not have been prohibited from expending the funds used to cash collateralize such instrument directly under the terms of this Agreement;
(p) the incurrence by the Borrower and/or any of its Restricted Subsidiaries of (A) additional Indebtedness if (1) such Indebtedness does not mature, and is not subject to mandatory repurchase, redemption or amortization (other than pursuant to customary asset sale or change of control provisions requiring redemption or repurchase only if and to the extent permitted by this Agreement and other than amortization payments of up to 1% of the initial principal amount per annum) prior to the date that is six months after the Term Loan Maturity Date, provided, however, that the restrictions in this Section 6.01(p)(A)(1) shall not apply to any Indebtedness in the form of Letters of Credit, any other letters of credit and any Indebtedness that is secured by any assets of the Borrower or any Restricted Subsidiary, (2) no Default or Event of Default exists immediately prior to, or would exist immediately after giving effect to, the incurrence of such Indebtedness, (3) the Consolidated Leverage Ratio for the Borrower’s most recently ended Test Period for which financial statements are publicly available immediately preceding the date on which such additional Indebtedness is incurred would have been no more than 5.25 to 1.00 (or, at any time after December 31, 2007, 5.00 to 1.00), determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if such additional Indebtedness (and any other Indebtedness incurred during such Test Period or from the end of such Test Period through the date on which such calculation is made) had been incurred at the beginning of the applicable Test Period and was outstanding on such calculation date and (4) the Consolidated Interest Coverage Ratio for the Borrower’s most recently ended Test Period for which financial statements are publicly available immediately preceding the date on which such additional Indebtedness is incurred would have been at least 2.0 to 1.0, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if such additional Indebtedness (and any other Indebtedness incurred during such Test Period or from the end of such Test Period through the date on which such calculation is made) had been incurred at the beginning of the applicable Test Period and (B) additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (p)(B), not to exceed $250,000,000; provided that in the case of any incurrence of any Indebtedness pursuant to this clause (p), (x) the Borrower shall be in compliance as of the date of such incurrence, on a pro forma basis after giving effect to the incurrence of such Indebtedness, with the covenants set forth in Sections 6.13 and 6.14, as if such Indebtedness (and any other Indebtedness incurred during such Test Period or from the end of such Test Period through the date such calculation is made) had been incurred on the first day of the applicable Test Period; and (y) no more than the greater of (1) $600,000,000 and (2) an amount equal to the Consolidated EBITDA of the Borrower for the period of four consecutive fiscal quarters most recently ended on or prior to the date on which such Indebtedness is incurred multiplied by 25% (less, in the case of each of clause (1) and clause (2), the aggregate principal amount of any New Loan Commitments obtained pursuant to Section 2.25) in aggregate principal amount of Indebtedness incurred pursuant to this clause (p) may be secured by first priority and/or second priority Liens on the Collateral, and any such Liens must be granted in favor of the Collateral Trustee in the manner set forth in, and be otherwise subject to (and in compliance with), the Collateral Trust Agreement; and provided, further that in connection with the incurrence of Indebtedness secured by first priority Liens pursuant to this clause (p), the requirements of Section 9.19 shall have been satisfied to the extent applicable;
(q) the incurrence of Indebtedness of a Person or Indebtedness attaching to assets of a Person that, in either case, becomes a Restricted Subsidiary or Indebtedness attaching to assets that are acquired by the Borrower or any Restricted Subsidiary, in each case after the Funds Availability Closing Date as the result of a Permitted Acquisition; provided that (i) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof, (ii) such Indebtedness is not guaranteed in any respect by the Borrower or any Restricted Subsidiary (other than any such Person that so becomes a Restricted Subsidiary) except to the extent that such Guarantee is permitted to be incurred (and is so incurred) pursuant to clause (p) of this Section 6.01 and (iii)(A) the Capital Stock Equity Interests of such Person are pledged to the Collateral Administrative Agent to the extent required under Section 5.10 5.09 and (B) such Person executes a supplement to each of the Security Documents (or alternative guarantee and security arrangements in relation to the Secured Obligations) to the extent required under Section 5.105.09;
(pr) the incurrence by the Borrower (other than the NY Real Property Subsidiaries) or any Restricted Subsidiary of Indebtedness to finance a Permitted Acquisition; provided that (i) such Indebtedness is not guaranteed in any respect by any Person Restricted Subsidiary (other than the any Person acquired (the “acquired Person”) as a result of such Permitted Acquisition) or by the Borrower except to the extent that such Guarantee is permitted to be incurred (and is so incurred) pursuant to clause (p) of this Section 6.01, and (ii)(A) the Borrower pledges the Capital Stock Equity Interests of such acquired Person to the Collateral Administrative Agent to the extent required under Section 5.10 5.09 and (B) such acquired Person executes a supplement to the Security Documents (or alternative guarantee and security arrangements in relation to the Secured Obligations) to the extent required under Section 5.105.09;
(qs) the incurrence by the Borrower and/or any of its Restricted Subsidiaries of unsecured Indebtedness, in each case, (i) that does not mature, and is not subject to mandatory repurchase, redemption or amortization (other than pursuant to customary asset sale or change of control provisions requiring redemption or repurchase only if and to the extent permitted by this Agreement) prior to the date that is six months after the Term Loan Maturity Date, (ii) that is not exchangeable or convertible into Indebtedness of the Borrower (other than other Indebtedness permitted by this clause (s)) or any Restricted Subsidiary or any preferred stock or other Equity Interest and (iii) solely to the extent the Net Cash Proceeds thereof are used to prepay Term Loans pursuant to and to the extent required by Section 2.13(c);
(t) the incurrence by the Borrower or any Restricted Subsidiary of Indebtedness consisting of (i) obligations to pay insurance premiums, premiums or (ii) self-insurance obligations or (iii) take-or-pay obligations contained in supply agreements, in each case arising in the ordinary course of business and not in connection with the borrowing of money or Hedging Obligations.
(r) [Intentionally omitted]
(s) Guarantee obligations in respect of any Investment permitted pursuant to Sections 6.05(a), 6.05(c), 6.05(d) (to the extent existing on the Funds Availability Date), 6.05(e), 6.05(g), 6.05(h), 6.05(j), 6.05(o), 6.05(p) and 6.05(q);
(t) Cash Management ObligationsAgreements;
(u) Indebtedness representing (i) workers compensation claims, (ii) health, disability or other employee benefits and (iii) deferred compensation to employees, consultants or independent contractors the issuance by any of the Borrower and Excluded Subsidiaries of shares of preferred stock the Restricted Subsidiaries incurred proceeds of which are used solely to finance the development, construction or acquisition by such Subsidiary of fixed or capital assets useful in the ordinary course conduct of businessthe Permitted Business;
(v) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to current or former officers, managers, consultants, directors and employees (or their respective spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees) to finance the purchase or redemption of Capital Stock or Capital Stock Equivalents of the Borrower permitted by Section 6.06(b);
(w) additional unsecured Indebtedness; provided that (i) such Indebtedness matures after, and does not require any scheduled amortization or other scheduled payments of principal prior to, the Revolving Credit Maturity Date; (ii) such Indebtedness is incurred by the Borrower; (iii) both immediately prior and after giving effect to the incurrence thereof, (A) no Default or Event of Default shall exist or result therefrom and (B) the Borrower and its Restricted Subsidiaries shall be in pro forma compliance with the Financial Covenants and (iv) to the extent that such incurrence of additional unsecured Indebtedness exceeds an aggregate principal amount of $20,000,000, the Borrower delivers a certificate of a Financial Officer to the Administrative Agent at least 2 Business Days prior to the incurrence of such unsecured Indebtedness stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirements of this clause (w);
(x) the incurrence by the Borrower or any Restricted Subsidiary of Environmental CapEx Debt or Necessary CapEx Debt (which Indebtedness may be secured Debt, in an aggregate principal amount not to the extent provided in Section 6.02(bb))exceed $200,000,000 at any time outstanding; provided that, prior to the incurrence of any such Environmental CapEx Debt or Necessary CapEx Debt, the Borrower shall deliver to the Administrative Agent an officers’ certificate by a Financial Officer designating such Indebtedness as Environmental CapEx Debt or Necessary CapEx Debt, as applicable;
(yw) Indebtedness incurred by the Borrower and its Restricted Subsidiaries in good faith to invest in nuclear decommissioning trusts or to comply with decommissioning agreementsincurrence of Permitted Itiquira Indebtedness; and
(zx) all premiums (if any)Indebtedness consisting of representations, interest (including post-petition interest)warranties, fees, expenses, chargescovenants and indemnities made by, and additional or contingent interest on repurchase, payment and other obligations described in clauses (a) through (y) above. For purposes of determining compliance with this Section 6.01, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Indebtedness described in clauses (a) through (z) aboveof, the Borrower shall, in its reasonable discretion, classify and reclassify or later divide, classify or reclassify such item of Indebtedness (or any portion thereof) Restricted Subsidiary in connection with a South Central Securitization permitted by Section 6.04; provided that such representations, warranties, covenants, indemnities and will only be required repurchase, payment and other obligations are of the type customarily included in securitizations of accounts receivable intended to include the amount and type constitute true sales of such Indebtedness in one or more of the above clausesaccounts receivable to a securitization vehicle.
Appears in 1 contract
Samples: Credit Agreement (NRG Energy, Inc.)
