Indebtedness; Certain Equity Interests. Incur any Indebtedness other than: (a) Permitted Indebtedness; (b) Indebtedness of a Loan Party to any other Loan Party or to any Subsidiary of any Loan Party that is not secured by a Lien and subject to a Subordinated Debt Subordination Agreement; 1 10068325v17 (c) Indebtedness in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety appeal or similar bonds and completion guarantees provided in the Ordinary Course of Business; (d) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the Ordinary Course of Business; provided, however, that such Indebtedness is extinguished within 10 days of incurrence; (e) Indebtedness arising in connection with endorsement of instruments for deposit in the Ordinary Course of Business; (f) Indebtedness incurred in connection with the financing of insurance premiums in an aggregate amount at any time outstanding not to exceed the premiums owed under such policy, if applicable; (g) contingent obligations to financial institutions, in each case to the extent in the Ordinary Course of Business and on terms and conditions which are within the general parameters customary in the banking industry, entered into to obtain cash management services or deposit account overdraft protection services (in an amount similar to those offered for comparable services in the financial industry) or other services in connection with the management or opening of deposit accounts or incurred as a result of endorsement of negotiable instruments for deposit or collection purposes and other customary, contingent obligations incurred in the Ordinary Course of Business; (h) unsecured Guarantees of facility leases of any Loan Party; (i) obligations of the Parent or any of its Subsidiaries under Hedging Agreements permitted under Section 8.14 with respect to interest rates, foreign currency exchange rates or commodity prices, in each case not entered into for speculative purposes; provided that if such Hedging Agreements relate to interest rates, (A) such Hedging Agreements relate to payment obligations on Indebtedness otherwise permitted to be incurred by the Loan Documents and (B) the notional principal amount of such Hedging Agreements at the time incurred does not exceed the principal amount of the Indebtedness to which such Hedging Agreements relate; (j) Indebtedness of Parent under the Convertible Notes outstanding on the Closing Date and any Permitted Refinancing Indebtedness with respect thereto; and (k) unsecured Indebtedness of the Loan Parties in an amount not to exceed $15,000,000 at any time outstanding; provided that (i) such Indebtedness shall not mature prior to the date that is 91 days after the Maturity Date in effect at the time of the issuance of such Indebtedness and shall not have any principal payments due prior to such date, except upon the occurrence of a change of control or similar event (including asset sales), in each case so long as the provisions relating to change of control or similar events (including asset sales) included in the governing instrument of such Indebtedness provide that the provisions of this Agreement must be satisfied prior to the satisfaction of such provisions of such Indebtedness, (ii) such Indebtedness shall not have any financial maintenance covenants, (iii) such Indebtedness shall not have a definition of “Change of Control” or “Change in Control” (or any other defined term having a similar purpose) that is materially more restrictive than the definition of Change in Control set forth herein, (iv) such Indebtedness is subordinated to the Obligations on terms reasonably acceptable to the Required Lenders and (v) no such Indebtedness shall be, directly or indirectly, provided by any lender or agent or Affiliate of any lender or agent under the Term Loan Agreement; and 10068325v17 (l) unsecured Indebtedness of the Loan Parties in an amount not to exceed $15,000,000
Appears in 1 contract
Indebtedness; Certain Equity Interests. Incur any Indebtedness other than:
(a) Permitted Incur, create, assume or permit to exist any Indebtedness;
(b) Indebtedness of a Loan Party to any other Loan Party or to any Subsidiary of any Loan Party that is not secured by a Lien and subject to a Subordinated Debt Subordination Agreement; 1 10068325v17
(c) Indebtedness in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety appeal or similar bonds and completion guarantees provided in the Ordinary Course of Business;
(d) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the Ordinary Course of Business; provided, however, that such Indebtedness is extinguished within 10 days of incurrence;
(e) Indebtedness arising in connection with endorsement of instruments for deposit in the Ordinary Course of Business;
(f) Indebtedness incurred in connection with the financing of insurance premiums in an aggregate amount at any time outstanding not to exceed the premiums owed under such policy, if applicable;
(g) contingent obligations to financial institutions, in each case to the extent in the Ordinary Course of Business and on terms and conditions which are within the general parameters customary in the banking industry, entered into to obtain cash management services or deposit account overdraft protection services (in an amount similar to those offered for comparable services in the financial industry) or other services in connection with the management or opening of deposit accounts or incurred as a result of endorsement of negotiable instruments for deposit or collection purposes and other customary, contingent obligations incurred in the Ordinary Course of Business;
(h) unsecured Guarantees of facility leases of any Loan Party;except:
(i) obligations of Indebtedness existing on the Parent date hereof and set forth in Schedule 6.01;
(ii) Indebtedness arising hereunder or any of its Subsidiaries under Hedging Agreements permitted under Section 8.14 with respect to interest rates, foreign currency exchange rates or commodity prices, in each case not entered into for speculative purposes; provided that if such Hedging Agreements relate to interest rates, evidenced by (A) such Hedging Agreements relate to payment obligations on Indebtedness otherwise permitted to be incurred by the Loan Documents and (B) the notional principal Senior Notes Documents;
(iii) Indebtedness incurred by any Borrower or any other Subsidiary subsequent to the Closing Date secured by purchase money Liens (exclusive of Capex Financings) in an aggregate amount not to exceed $1,000,000 at any one time outstanding;
(iv) subject to Section 6.10, Capex Financings;
(v) Indebtedness arising from investments among FRD, any Borrower and any other Subsidiary that are permitted hereunder;
(vi) Indebtedness owed to the Administrative Agent or Chase or any of their respective banking Affiliates in respect of any overdrafts and related liabilities arising from treasury, depository and cash management services or in connection with any automated clearing house transfers of funds, in each case incurred in the ordinary course of business;
(vii) in the case of any Borrower or any Subsidiary Guarantor:
(A) all interest, fees, reimbursement and indemnification amounts, and all other accruals and obligations under the Indebtedness described in Section 6.01(a)(i) and renewals, extensions, modifications or refinancings of such Hedging Agreements at Indebtedness, PROVIDED that such renewals, extensions, modifications and refinancings (1) do not increase the time incurred does not exceed the outstanding principal amount of the Indebtedness being renewed, extended, modified or refinanced, or shorten the maturity thereof to which such Hedging Agreements relatea date earlier than one year after the Maturity Date, and (2) are otherwise on terms consistent with prudent business practice and then prevailing market practices and prices in the applicable geographic area;
(jB) additional unsecured Indebtedness not otherwise permitted by this Section 6.01(a) aggregating not more than $2,000,000 in principal amount at any one time outstanding;
(C) obligations under performance or surety bonds that constitute Indebtedness (if any) incurred in the ordinary course of business, PROVIDED that the aggregate maximum amount available to be paid or drawn under such performance or surety bonds that are not supported by Letters of Credit shall not exceed $2,000,000 at any time outstanding;
(D) Indebtedness incurred or assumed in any transaction permitted under Section 6.04(j) and Section 6.10;
(viii) Indebtedness in respect of Parent under Interest Rate Protection Agreements entered into with a counterparty that is a Lender (or an Affiliate thereof) as of the Convertible Notes outstanding on date such Interest Rate Protection Agreement is entered into, PROVIDED that the Closing Date and any Permitted Refinancing Indebtedness with respect theretoaggregate notional amount thereof shall not exceed $40,000,000; and
(kix) unsecured Indebtedness in respect of the Loan Parties (A) accrued but unpaid Permitted Management Fees in an amount not to exceed $15,000,000 at 10,000,000 in any time outstanding; provided that (i) such Indebtedness shall not mature prior to the date that is 91 days after the Maturity Date in effect at the time of the issuance of such Indebtedness and shall not have any principal payments due prior to such date, except upon the occurrence of a change of control or similar event (including asset sales), in each case so long as the provisions relating to change of control or similar events (including asset sales) included in the governing instrument of such Indebtedness provide that the provisions of this Agreement must be satisfied prior to the satisfaction of such provisions of such Indebtednessfiscal year, (iiB) such Indebtedness shall not have Permitted Franchise Fees and (C) obligations under the Tax Allocation Agreement.
(b) Neither FRD nor FRI-M nor any financial maintenance covenantsBorrower will, (iii) such Indebtedness shall not have a definition of “Change of Control” or “Change in Control” (or nor will they permit any other defined term having a similar purpose) that is materially more restrictive than the definition of Change in Control set forth hereinSubsidiary to, (iv) such Indebtedness is subordinated to the Obligations on terms reasonably acceptable to the Required Lenders and (v) no such Indebtedness shall be, directly issue any preferred stock or indirectly, provided by any lender or agent or Affiliate of any lender or agent under the Term Loan Agreement; and 10068325v17
(l) unsecured Indebtedness of the Loan Parties in an amount not to exceed $15,000,000other preferred Equity Interests.
Appears in 1 contract
Indebtedness; Certain Equity Interests. Incur any Indebtedness other than:
(a) The Borrower shall not, and shall not permit any of its Restricted Subsidiaries to create, incur, issue, assume, guarantee or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness (including Acquired Indebtedness) and the Borrower shall not issue any shares of Disqualified Equity Interests and shall not permit any Restricted Subsidiary to issue any shares of Disqualified Equity Interests or Preferred Stock; provided, that, from and after the Bridge Extension Date, the Borrower may incur Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified Equity Interests, and any of its Restricted Subsidiaries may incur Indebtedness (including Acquired Indebtedness), issue shares of Disqualified Equity Interests and issue shares of Preferred Stock, if the Total Net Leverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness, Disqualified Equity Interests or Preferred Stock, as applicable, and the use of proceeds thereof, shall not exceed 4.10 to 1.00, determined on a Pro Forma Basis (including a pro forma application of the net proceeds therefrom, as if the additional Indebtedness had been incurred, or the Disqualified Equity Interests or Preferred Stock had been issued, as the case may be, and the application of proceeds therefrom had occurred at the beginning of such four-quarter period); provided, further, however, that, on a Pro Forma Basis, together with any amounts incurred or issued, as applicable, and outstanding by Non-Guarantor Subsidiaries pursuant to clauses (xi)(b), (xvi) and (xxvi)(A) of Section 6.01(b), no more than the greater of $426,000,000 and 30% of Consolidated EBITDA for the most recently ended Test Period, calculated on a Pro Forma Basis, of Indebtedness, Disqualified Equity Interests or Preferred Stock at any one time outstanding and incurred or issued, as applicable, pursuant to this paragraph shall be incurred or issued, as applicable, by Non-Guarantor Subsidiaries; provided, further, however, that any Indebtedness incurred pursuant to this Section 6.01(a) (i) does not have a maturity date earlier than (x) in the case of Indebtedness incurred prior to the Bridge Extension Date, the Bridge Extension Date and (y) in the case of Indebtedness incurred following the Bridge Extension Date but prior to the Final Maturity Date, the Final Maturity Date and (ii) does not have a shorter Weighted Average Life to Maturity than (x) in the case of Indebtedness incurred prior to the Bridge Extension Date, the then remaining Initial Term Loans and (y) in the case of Indebtedness incurred following the Bridge Extension Date and prior to the Final Maturity Date, the then remaining Term Loans; provided, that the foregoing limitation shall not apply to Indebtedness of any Person that becomes a Restricted Subsidiary in connection with a Permitted Indebtedness;Acquisition or any other Investment not prohibited by Section 6.05 (or of any Person not previously a Restricted Subsidiary that is merged, amalgamated or consolidated with or into the Borrower or a Restricted Subsidiary) if such Indebtedness is outstanding prior to such Person becoming a Restricted Subsidiary and to the extent such Indebtedness is not incurred in contemplation of such acquisition or Investment.
(b) The provisions of Section 6.01(a) hereof shall not apply to:
(i) Indebtedness of a the Borrower and any of the Restricted Subsidiaries under the Loan Party Documents (including any Indebtedness incurred pursuant to Section 2.20) and any Credit Agreement Refinancing Indebtedness, any Unsecured Notes, the Demand Securities and any Exchange Notes, in an aggregate principal amount under this clause (a) not to exceed $733,400,000;
(ii) Indebtedness of the Borrower and its Restricted Subsidiaries in existence on the Effective Date (other Loan Party than Indebtedness described in clauses (i) and (xxiv) of this Section 6.01(b));
(iii) Indebtedness (including Capitalized Lease Obligations), Disqualified Equity Interests and Preferred Stock incurred by the Borrower or any of its Restricted Subsidiaries, to finance all or any Subsidiary part of (x) the purchase, lease, construction, installation or improvement of property (real or personal), equipment or other assets (including, without limitation, any satellites or related gateway facilities, earth stations and other ground infrastructure), (y) the design, repair or maintenance of any Loan Party that is Other Satellite Project (including, without limitation, any satellites or related gateway facilities, earth stations and other ground infrastructure) or (z) satellite launch or in-orbit insurance premiums or launch services, (so long as, in the case of Indebtedness other than Capitalized Lease Obligations: (A) the Indebtedness incurred shall not secured by exceed one hundred percent (100%) of the price or cost of the purchase, lease, construction, installation, improvement, design, repair or maintenance of such property, equipment or other assets or such premiums or launch services, as applicable, and (B) such Indebtedness shall be incurred concurrently with or within twelve (12) months following the purchase, lease, construction, installation, improvement, design, repair or maintenance of such property, equipment or other assets or incurrence of such premiums or launch services, as applicable); provided that, at the time of any such incurrence of Indebtedness, Disqualified Equity Interests or Preferred Stock (and after giving Pro Forma Effect thereto), the aggregate amount of Indebtedness, Disqualified Equity Interests and Preferred Stock incurred pursuant to this clause (iii), when aggregated with the outstanding principal amount of Refinancing Indebtedness in respect of Indebtedness, Disqualified Equity Interests and Preferred Stock initially incurred in reliance on this clause (iii), does not exceed the greater of $426,000,000 and 30% of Consolidated EBITDA for the most recently ended Test Period, calculated on a Lien and subject to a Subordinated Debt Subordination Agreement; 1 10068325v17Pro Forma Basis;
(civ) Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries constituting reimbursement obligations with respect to letters of credit, bank guarantees, banker’s acceptances, warehouse receipts, or similar instruments issued or created in the ordinary course of business, including letters of credit in respect of workers’ compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance;
(v) Indebtedness consisting of obligations under deferred compensation (including indemnification obligations, performance obligations in respect of purchase price adjustments, earn-outs, incentive non-competes and other contingent obligations) or other similar arrangements incurred or assumed in connection with the Inmarsat Acquisition, any acquisition or other investment or any disposition, in each case, not prohibited hereunder;
(vi) Indebtedness of the Borrower owing to a Restricted Subsidiary; provided that any such Indebtedness owing to a Restricted Subsidiary that is not a Loan Party is expressly subordinated in right of payment to the Loan Document Obligations (but only to the extent permitted by applicable law and not giving rise to adverse tax consequences); provided, further, that any subsequent issuance or transfer of any Equity Interests or any other event that results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of any such Indebtedness (except to the Borrower or another Restricted Subsidiary or any pledge of such Indebtedness constituting a Permitted Lien (but not foreclosure thereon)) shall be deemed, in each case, to be an incurrence of such Indebtedness not permitted by this clause (vi);
(vii) Indebtedness of a Restricted Subsidiary owing to the Borrower or another Restricted Subsidiary; provided that if a Loan Party incurs such Indebtedness owing to a Restricted Subsidiary that is not a Loan Party, such Indebtedness is expressly subordinated in right of payment to the Loan Document Obligations (but only to the extent permitted by applicable law and not giving rise to adverse tax consequences); provided, further, that any subsequent transfer of any such Indebtedness (except to the Borrower or another Restricted Subsidiary or any pledge of such Indebtedness constituting a Permitted Lien (but not foreclosure thereon)) shall be deemed, in each case, to be an incurrence of such Indebtedness not permitted by this clause (vii);
(viii) shares of Preferred Stock of a Restricted Subsidiary issued to the Borrower or another Restricted Subsidiary; provided that any subsequent issuance or transfer of any Equity Interests or any other event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of any such shares of Preferred Stock (except to the Borrower or another of its Restricted Subsidiaries) shall be deemed in each case to be an issuance of such shares of Preferred Stock not permitted by this clause (viii);
(ix) Hedging Obligations incurred not for speculative purposes;
(x) obligations in respect of self-insurance and obligations in respect of performance, bid, appeal and surety bonds, surety appeal performance and completion guarantees, statutory, export or similar bonds import indemnities, customs and completion guarantees (not for borrowed money) and similar obligations provided by the Borrower or any of its Restricted Subsidiaries or obligations in respect of letters of credit, bank guarantees or similar instruments related thereto, in each case, in the Ordinary Course ordinary course of Businessbusiness or consistent with past practice;
(dxi) Indebtedness arising (a) from and after the Bridge Extension Date, Indebtedness, Disqualified Equity Interests or Preferred Stock of the Borrower or any Restricted Subsidiary equal to 100% of the net cash proceeds received by the Borrower since immediately after the Effective Date from the honoring issue or sale of Equity Interests of the Borrower or cash contributed to the capital of the Borrower or any Restricted Subsidiary (in each case, other than Excluded Contributions or proceeds of Disqualified Equity Interests or sales of Equity Interests to the Borrower or any of its Subsidiaries) as determined in accordance with clauses (C)(2) and (C)(3) of Section 6.05(a) hereof to the extent such net cash proceeds or cash have not been applied pursuant to such clauses to make Restricted Payments or to make other Investments, payments or exchanges pursuant to Section 6.05(b) hereof or to make Permitted Investments (other than Permitted Investments specified in clauses (1) and (3) of the definition thereof) and (b) Indebtedness, Disqualified Equity Interests or Preferred Stock of the Borrower or any Restricted Subsidiary not otherwise permitted hereunder in an aggregate principal amount or liquidation preference, which when aggregated with the principal amount and liquidation preference of all other Indebtedness, Disqualified Equity Interests and Preferred Stock then outstanding and incurred pursuant to this clause (xi)(b) and the outstanding amount of Indebtedness, Disqualified Equity Interests or Preferred Stock of the Borrower or any Restricted Subsidiary which serves to refinance any Indebtedness, Disqualified Equity Interests or Preferred Stock incurred as permitted under this clause (xi)(b) or any Indebtedness, Disqualified Equity Interests or Preferred Stock issued to so refund or refinance such Indebtedness, Disqualified Equity Interests or Preferred Stock, does not, at the time of any such incurrence of Indebtedness (and after giving Pro Forma Effect thereto), exceed the sum of (x) the greater of $710,000,000 and 50% of Consolidated EBITDA for the most recently ended Test Period, calculated on a Pro Forma Basis and (y) an additional amount of Indebtedness in lieu of Restricted Payments permitted under Section 6.05 (it being understood that such Indebtedness shall be deemed a Restricted Payment for purposes of compliance with Section 6.05) (it being understood that any Indebtedness, Disqualified Equity Interests or Preferred Stock incurred pursuant to this clause (xi)(b) shall cease to be deemed incurred or outstanding for purposes of this clause (xi)(b) but shall be deemed incurred for the purposes of Section 6.01(a) hereof from and after the first date on which the Borrower or such Restricted Subsidiary could have incurred such Indebtedness, Disqualified Equity Interests or Preferred Stock under Section 6.01(a) hereof without reliance on this clause (xi)(b)); provided that on a Pro Forma Basis, together with any amounts incurred or issued, as applicable, and outstanding by Non-Guarantor Subsidiaries pursuant to Section 6.01(a), this clause (xi)(b)(x) of this Section 6.01(b) and clauses (xvi) and (xxvi)(A) of this Section 6.01(b), no more than the greater of $426,000,000 and 30% of Consolidated EBITDA for the most recently ended Test Period, calculated on a bank Pro Forma Basis, of Indebtedness, Disqualified Equity Interests or Preferred Stock at any one time outstanding and incurred or issued, as applicable, shall be incurred or issued, as applicable, by Non-Guarantor Subsidiaries; provided, however, that the foregoing limitation shall not apply to Indebtedness of any Person that becomes a Restricted Subsidiary in connection with a Permitted Acquisition or any other financial institution Investment not prohibited by Section 6.05 (or of any Person not previously a checkRestricted Subsidiary that is merged, draft amalgamated or similar instrument inadvertently consolidated with or into the Borrower or a Restricted Subsidiary) if such Indebtedness is outstanding prior to such Person becoming a Restricted Subsidiary and to the extent such Indebtedness is not incurred in contemplation of such acquisition or Investment;
(except xii) the incurrence by the Borrower or any Restricted Subsidiary of Indebtedness or issuance by the Borrower or any Restricted Subsidiary, of the Borrower of Indebtedness, Disqualified Equity Interests or Preferred Stock of the Borrower or any Restricted Subsidiary which serves to refund, refinance, replace, exchange, redeem, retire, repay, renew, extend or defease (collectively, “refinance” and “refinances”, with “refinanced” and “refinancing” having a correlative meaning) any Indebtedness incurred or Disqualified Equity Interests or Preferred Stock issued as permitted under Section 6.01(a) hereof and clauses (ii), (iii) and (xi) of this Section 6.01(b), this clause (xii) and clauses (xvi), (xix), (xxiv), (xxvi), (xxix), (xxx), (xxxi), (xxxiii), (xxxiv) or (xxxv) of this Section 6.01(b) or any Indebtedness incurred or Disqualified Equity Interests or Preferred Stock issued to so refinance such Indebtedness, Disqualified Equity Interests or Preferred Stock including additional Indebtedness, Disqualified Equity Interests or Preferred Stock incurred to pay interest, premiums (including tender premiums), defeasance costs and/or fees in connection therewith (the case of daylight overdrafts) drawn against insufficient funds in the Ordinary Course of Business“Refinancing Indebtedness”); provided, however, that such Indebtedness is extinguished within 10 days of incurrence;
(e) Indebtedness arising in connection with endorsement of instruments for deposit in the Ordinary Course of Business;
(f) Indebtedness incurred in connection with the financing of insurance premiums in an aggregate amount at any time outstanding not to exceed the premiums owed under such policy, if applicable;
(g) contingent obligations to financial institutions, in each case to the extent in the Ordinary Course of Business and on terms and conditions which are within the general parameters customary in the banking industry, entered into to obtain cash management services or deposit account overdraft protection services (in an amount similar to those offered for comparable services in the financial industry) or other services in connection with the management or opening of deposit accounts or incurred as a result of endorsement of negotiable instruments for deposit or collection purposes and other customary, contingent obligations incurred in the Ordinary Course of Business;
(h) unsecured Guarantees of facility leases of any Loan Party;
(i) obligations of the Parent or any of its Subsidiaries under Hedging Agreements permitted under Section 8.14 with respect to interest rates, foreign currency exchange rates or commodity prices, in each case not entered into for speculative purposes; provided that if such Hedging Agreements relate to interest rates, (A) such Hedging Agreements relate to payment obligations on Indebtedness otherwise permitted to be incurred by the Loan Documents and (B) the notional principal amount of such Hedging Agreements at the time incurred does not exceed the principal amount of the Indebtedness to which such Hedging Agreements relate;
(j) Indebtedness of Parent under the Convertible Notes outstanding on the Closing Date and any Permitted Refinancing Indebtedness with respect thereto; and
(k) unsecured Indebtedness of the Loan Parties in an amount not to exceed $15,000,000 at any time outstanding; provided that (i) such Indebtedness shall not mature prior to the date that is 91 days after the Maturity Date in effect at the time of the issuance of such Indebtedness and shall not have any principal payments due prior to such date, except upon the occurrence of a change of control or similar event (including asset sales), in each case so long as the provisions relating to change of control or similar events (including asset sales) included in the governing instrument of such Indebtedness provide that the provisions of this Agreement must be satisfied prior to the satisfaction of such provisions of such Indebtedness, (ii) such Indebtedness shall not have any financial maintenance covenants, (iii) such Indebtedness shall not have a definition of “Change of Control” or “Change in Control” (or any other defined term having a similar purpose) that is materially more restrictive than the definition of Change in Control set forth herein, (iv) such Indebtedness is subordinated to the Obligations on terms reasonably acceptable to the Required Lenders and (v) no such Indebtedness shall be, directly or indirectly, provided by any lender or agent or Affiliate of any lender or agent under the Term Loan Agreement; and 10068325v17
(l) unsecured Indebtedness of the Loan Parties in an amount not to exceed $15,000,000:
Appears in 1 contract
Samples: Bridge Credit Agreement (Viasat Inc)
Indebtedness; Certain Equity Interests. Incur any Indebtedness other than:
(a) Permitted Indebtedness;
(b) Indebtedness of a Loan Party to any other Loan Party or to any Subsidiary of any Loan Party that is not secured by a Lien and subject to a Subordinated Debt Subordination Agreement; 1 10068325v17;
(c) Indebtedness in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety appeal or similar bonds and completion guarantees provided in the Ordinary Course of Business;
(d) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the Ordinary Course of Business; provided, however, that such Indebtedness is extinguished within 10 days of incurrence;
(e) Indebtedness arising in connection with endorsement of instruments for deposit in the Ordinary Course of Business;
(f) Indebtedness incurred in connection with the financing of insurance premiums in an aggregate amount at any time outstanding not to exceed the premiums owed under such policy, if applicable;
(g) contingent obligations to financial institutions, in each case to the extent in the Ordinary Course of Business and on terms and conditions which are within the general parameters customary in the banking industry, entered into to obtain cash management services or deposit account overdraft protection services (in an amount similar to those offered for comparable services in the financial industry) or other services in connection with the management or opening of deposit accounts or incurred as a result of endorsement of negotiable instruments for deposit or collection purposes and other customary, contingent obligations incurred in the Ordinary Course of Business;
(h) unsecured Guarantees of facility leases of any Loan Party;
(i) obligations of the Parent or any of its Subsidiaries under Hedging Agreements permitted under Section 8.14 with respect to interest rates, foreign currency exchange rates or commodity prices, in each case not entered into for speculative purposes; provided that if such Hedging Agreements relate to interest rates, (A) such Hedging Agreements relate to payment obligations on Indebtedness otherwise permitted to be incurred by the Loan Documents and (B) the notional principal amount of such Hedging Agreements at the time incurred does not exceed the principal amount of the Indebtedness to which such Hedging Agreements relate;
(j) Indebtedness of Parent under the Convertible Notes outstanding on the Closing Date and any Permitted Refinancing Indebtedness with respect thereto; and
(k) unsecured Indebtedness of the Loan Parties in an amount not to exceed $15,000,000 at any time outstanding; provided that (i) such Indebtedness shall not mature prior to the date that is 91 days after the Maturity Date in effect at the time of the issuance of such Indebtedness and shall not have any principal payments due prior to such date, except upon the occurrence of a change of control or similar event (including asset sales), in each case so long as the provisions relating to change of control or similar events (including asset sales) included in the governing instrument of such Indebtedness provide that the provisions of this Agreement must be satisfied prior to the satisfaction of such provisions of such Indebtedness, (ii) such Indebtedness shall not have any financial maintenance covenants, (iii) such Indebtedness shall not have a definition of “Change of Control” or “Change in Control” (or any other defined term having a similar purpose) that is materially more restrictive than the definition of Change in Control set forth herein, (iv) such Indebtedness is subordinated to the Obligations on terms reasonably acceptable to the Required Lenders and (v) no such Indebtedness shall be, directly or indirectly, provided by any lender or agent or Affiliate of any lender or agent under the Second Lien Term Loan Agreement; and 10068325v17
(l) unsecured Indebtedness of the Loan Parties in an amount not to exceed $15,000,000.
Appears in 1 contract
Indebtedness; Certain Equity Interests. Incur The Borrower will not, nor will it permit any Indebtedness other thanRestricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(ai) Permitted Indebtedness;Indebtedness created under the Loan Documents,
(bii) [reserved],
(iii) Indebtedness existing on the Third A&R Effective Date set forth in Schedule 6.01 and any Permitted Refinancing thereof,
(iv) Indebtedness of a the Borrower owed to any Restricted Subsidiary and of any Restricted Subsidiary owed to the Borrower or any other Restricted Subsidiary; provided that (A) Indebtedness of the Borrower owed to any Restricted Subsidiary and Indebtedness of any Subsidiary Loan Party owed to the Borrower or any other Restricted Subsidiary shall be subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent, (B) Indebtedness owed to any Captive Insurance Subsidiary shall only be subordinated to the extent permitted by applicable laws or regulations and (C) the related Investment is permitted by Section 6.04(d),
(v) Guarantees by the Borrower of Indebtedness of any Restricted Subsidiary and by any Restricted Subsidiary of Indebtedness of the Borrower or any other Restricted Subsidiary; provided that (A) the Indebtedness so Guaranteed is permitted by this Section 6.01, (B) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the Borrower or the applicable Restricted Subsidiary to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (C) except in the case of Foreign Subsidiaries that provide Guarantees of Indebtedness of other Foreign Subsidiaries, the related Investment is permitted by Section 6.04(d),
(vi) Indebtedness (including Attributable Indebtedness) of the Borrower or any Restricted Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations, and any Indebtedness assumed by the Borrower or any Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and Permitted Refinancings thereof; provided that (A) such Indebtedness (other than Permitted Refinancings) is incurred prior to or within 120 days after such acquisition or the completion of such construction or improvement and (B) the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not (except as permitted by the definition of “Permitted Refinancing”) exceed $10,000,000 at any time outstanding,
(vii) Acquired Indebtedness of the Borrower or any Restricted Subsidiary assumed in connection with any Permitted Acquisition and not created in contemplation thereof; provided that after giving Pro Forma Effect to such Permitted Acquisition and the assumption or incurrence of such Indebtedness incurred or assumed pursuant to this clause (vii), the Total Net Leverage Ratio does not exceed 4.25:1.00, and any Permitted Refinancing of any such Indebtedness; provided further that any such Indebtedness of a Non-Loan Party or does not exceed in the aggregate at any time outstanding, together with any Indebtedness incurred by a Non-Loan Party pursuant to clause (xiv) of this Section 6.01, $5,000,000,
(viii) Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business,
(ix) Indebtedness of the Borrower or any Restricted Subsidiary in respect of performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees and similar obligations, in each case provided in the ordinary course of business and consistent with practices of the Borrower and its Restricted Subsidiaries in place on the Third A&R Effective Date,
(x) Indebtedness of any Loan Party that is not secured by a Lien and subject pursuant to a Subordinated Debt Subordination any Swap Agreement; 1 10068325v17,
(cxi) [reserved],
(xii) Indebtedness representing deferred compensation to current or former consultants, employees or directors of Holdings, the Borrower and the Restricted Subsidiaries incurred in the ordinary course of business and consistent with practices of the Borrower and its Restricted Subsidiaries in place on the Third A&R Effective Date,
(xiii) Indebtedness in respect of workers’ compensation claimspromissory notes issued to physicians, self-insurance obligationsconsultants, performance bondsemployees or directors or former employees, surety appeal consultants or similar bonds and completion guarantees provided directors in the Ordinary Course connection with repurchases of Business;Equity Interests permitted by Section 6.08(a)(iii),
(dxiv) Indebtedness of any Foreign Subsidiary or any Non-Loan Party, collectively, in an amount not to exceed, together with any Indebtedness incurred by a Non-Loan Party pursuant to clause (vii) of this Section 6.01, $5,000,000 at any time outstanding,
(xv) unsecured Indebtedness; provided that on a Pro Forma Basis after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, the Total Net Leverage Ratio does not exceed 4.75:1.00 and (b) any Permitted Refinancing thereof,
(xvi) 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 inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the Ordinary Course ordinary course of Business; providedbusiness, however, that so long as such Indebtedness is extinguished within 10 days of incurrence;five (5) Business Days,
(exvii) the incurrence of Indebtedness arising from agreements of the Borrower or a Restricted Subsidiary providing for indemnification, adjustment of purchase price, holdback, contingency payment obligations or similar obligations, in each case, incurred or assumed in connection with endorsement the disposition or acquisition of any business, assets or capital stock of the Borrower or any Restricted Subsidiary,
(xviii) the incurrence of Indebtedness resulting from endorsements of negotiable instruments for deposit collection in the Ordinary Course ordinary course of Business;business,
(fxix) Indebtedness of the Borrower or a Restricted Subsidiary in respect of netting services, overdraft protection and otherwise in connection with deposit accounts; provided that such Indebtedness remains outstanding for ten (10) Business Days or less, and
(xx) the incurrence or issuance by the Borrower or any of its Restricted Subsidiaries of any additional Indebtedness in an aggregate principal amount not to exceed $25,000,000 at any time outstanding. Notwithstanding anything to the contrary contained in Section 6.01 or otherwise, in no event will the aggregate amount of earn-out or other contingent consideration obligations (other than the Acquisition Earn-Out) incurred in connection with one or more Permitted Acquisitions or permitted Investments reflected on a consolidated balance sheet of the financing of insurance premiums Loan Parties (in an aggregate amount accordance with GAAP) exceed $15,000,000 at any time outstanding not to exceed the premiums owed under such policy, if applicable;
(g) contingent obligations to financial institutionsoutstanding. For purposes of determining compliance with Section 6.01, in each case the event that an item of Indebtedness (or any portion thereof) at any time, whether at the time of incurrence or upon the application of all or a portion of the proceeds thereof or subsequently, meets the criteria of more than one of the categories of permitted Indebtedness described in Section 6.01(a)(i) through (xx) above, the Borrower, in its sole discretion, will classify and may subsequently reclassify such item of Indebtedness (or any portion thereof) in any one or more of the types of Indebtedness described in 6.01(a)(i) through (xx) above and will only be required to include the extent amount and type of such Indebtedness in such of the above clauses as determined by the Borrower at such time. The Borrower will be entitled to divide and classify an item of Indebtedness in more than one of the types of Indebtedness described in 6.01(a)(i) through (xx) above. For purposes of determining compliance with any dollar-denominated restriction on the incurrence of Indebtedness, the dollar-equivalent principal amount of Indebtedness denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred, in the Ordinary Course case of Business and on terms and conditions which are within the general parameters customary term debt, or first committed, in the banking industry, entered into to obtain cash management services or deposit account overdraft protection services (in an amount similar to those offered for comparable services in the financial industry) or other services in connection with the management or opening case of deposit accounts or incurred as a result of endorsement of negotiable instruments for deposit or collection purposes and other customary, contingent obligations incurred in the Ordinary Course of Business;
(h) unsecured Guarantees of facility leases of any Loan Party;
(i) obligations of the Parent or any of its Subsidiaries under Hedging Agreements permitted under Section 8.14 with respect to interest rates, foreign currency exchange rates or commodity prices, in each case not entered into for speculative purposesrevolving credit debt; provided that if such Hedging Agreements relate Indebtedness is incurred to interest ratesextend, (A) replace, refund, refinance, renew or defease other Indebtedness denominated in a foreign currency, and such Hedging Agreements relate to payment obligations on Indebtedness otherwise permitted extension, replacement, refunding, refinancing, renewal or defeasance would cause the applicable dollar-denominated restriction to be incurred by exceeded if calculated at the Loan Documents and (B) relevant currency exchange rate in effect on the notional date of such extension, replacement, refunding, refinancing, renewal or defeasance, such dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such Hedging Agreements at the time incurred refinancing Indebtedness does not exceed the principal amount of such Indebtedness being extended, replaced, refunded, refinanced, renewed or defeased, plus the Indebtedness to which aggregate amount of fees, underwriting discounts, premiums (including tender premiums) and other costs and expenses (including OID) incurred in connection with such Hedging Agreements relate;
(j) Indebtedness refinancing. The accrual of Parent under interest, the Convertible Notes outstanding on accretion or amortization of OID, the Closing Date and any Permitted Refinancing payment of interest in the form of additional Indebtedness with respect thereto; and
(k) unsecured Indebtedness of the Loan Parties in an amount not to exceed $15,000,000 at any time outstanding; provided that (i) such Indebtedness same terms, shall not mature prior be deemed to the date that is 91 days after the Maturity Date in effect at the time be an incurrence of the issuance of such Indebtedness and shall not have any principal payments due prior to such date, except upon the occurrence of a change of control or similar event (including asset sales), in each case so long as the provisions relating to change of control or similar events (including asset sales) included in the governing instrument of such Indebtedness provide that the provisions for purposes of this Agreement must be satisfied prior to the satisfaction of such provisions of such Indebtedness, (ii) such Indebtedness shall not have any financial maintenance covenants, (iii) such Indebtedness shall not have a definition of “Change of Control” or “Change in Control” (or any other defined term having a similar purpose) that is materially more restrictive than the definition of Change in Control set forth herein, (iv) such Indebtedness is subordinated to the Obligations on terms reasonably acceptable to the Required Lenders and (v) no such Indebtedness shall be, directly or indirectly, provided by any lender or agent or Affiliate of any lender or agent under the Term Loan Agreement; and 10068325v17
(l) unsecured Indebtedness of the Loan Parties in an amount not to exceed $15,000,000Section 6.01.
Appears in 1 contract
Indebtedness; Certain Equity Interests. Incur No Loan Party shall, and no Loan Party shall permit any other Loan Party to incur any Indebtedness other than:
(a) Permitted Indebtedness;
(b) unsecured Indebtedness of a Loan Party owed to any other another Loan Party, so long as (i) such Indebtedness is evidenced by the Global Intercompany Note with a legend noting such subordination and that is pledged and delivered to Agent in accordance with the Loan Documents and (ii) a Loan Party which owes such Indebtedness is a Person organized and existing under the laws of the United States or to any Subsidiary state or commonwealth thereof or under the laws of any Loan Party that is not secured by a Lien and subject to a Subordinated Debt Subordination Agreement; 1 10068325v17the District of Columbia;
(c) Indebtedness in respect of workers’ compensation claims, self-insurance obligations, performance bondsperformance, surety statutory, surety, appeal or similar bonds and completion guarantees provided in the Ordinary Course of Business;
(d) Guaranties permitted by Section 8.2;
(e) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the Ordinary Course of Business; provided, however, that such Indebtedness is extinguished within 10 days is extinguished within three (3) Business Days of incurrence;
(e) Indebtedness arising in connection with endorsement of instruments for deposit in the Ordinary Course of Business;
(f) Indebtedness incurred in connection with the financing Ordinary Course of Business to finance insurance premiums in an aggregate amount at any time outstanding not to exceed the premiums owed under such policy, if applicablepremiums;
(g) contingent obligations to financial institutionsIndebtedness in respect of netting services, in each case to the extent in the Ordinary Course of Business and on terms and conditions which are within the general parameters customary in the banking industry, entered into to obtain cash management services or deposit account overdraft protection services (in an amount and other similar to those offered for comparable services in the financial industry) or other services arrangements in connection with the management or opening of deposit accounts or incurred as a result of endorsement of negotiable instruments for deposit or collection purposes and other customary, contingent obligations incurred securities accounts in the Ordinary Course of Business;
(h) unsecured Guarantees Indebtedness incurred in respect of facility leases credit cards, credit card processing services, debit cards, stored value cards, purchase cards (including so-called “procurement cards” or “P-cards”), or cash management services, in each case, incurred in the Ordinary Course of any Loan PartyBusiness;
(i) obligations of the Parent or any of its Subsidiaries under Hedging Agreements permitted under Section 8.14 unsecured contingent liabilities arising with respect to interest rates, foreign currency exchange rates customary indemnification provisions or commodity prices, deferred purchase price adjustments in each case not entered into for speculative purposes; provided that if such Hedging Agreements relate to interest rates, (A) such Hedging Agreements relate to payment obligations on Indebtedness otherwise connection with any Investment permitted to be incurred by the Loan Documents and (B) the notional principal amount of such Hedging Agreements at the time incurred does not exceed the principal amount of the Indebtedness to which such Hedging Agreements relatehereunder or in connection with any asset sale or other dispositions permitted hereunder;
(j) other unsecured Indebtedness of Parent under the Convertible Notes outstanding on the Closing Date and in an aggregate principal amount not exceeding $5,000,000 at any Permitted Refinancing Indebtedness with respect thereto; andtime outstanding;
(k) unsecured Indebtedness of the Loan Parties in an amount not to exceed $15,000,000 at any time outstanding; provided that (i) such Indebtedness shall not mature prior to the date that is 91 days after the Maturity Date in effect at the time of the issuance of such Indebtedness and shall not have any principal payments due prior to such date, except upon the occurrence of a change of control or similar event (including asset sales), in each case so long as the provisions relating to change of control or similar events (including asset sales) included in the governing instrument of such Indebtedness provide that the provisions of this Agreement must be satisfied prior to the satisfaction of such provisions of such Indebtedness, (ii) such Indebtedness shall not have any financial maintenance covenants, (iii) such Indebtedness shall not have a definition of “Change of Control” or “Change in Control” (or any other defined term having a similar purpose) that is materially more restrictive than the definition of Change in Control set forth herein, (iv) such Indebtedness is subordinated to the Obligations on terms reasonably acceptable to the Required Lenders and (v) no such Indebtedness shall be, directly or indirectly, provided by any lender or agent or Affiliate of any lender or agent under the Term Loan Agreement; and 10068325v17Subordinated Debt;
(l) unsecured Indebtedness of any Loan Party owing to employees, former employees, former officers, directors, or former directors (or any spouses, ex-spouses, or estates of any of the foregoing) incurred in connection with the repurchase or redemption by such Loan Parties in an Party of the Equity Interests of Parent that has been issued to such Persons, so long as (i) no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, and (ii) the aggregate amount of all such Indebtedness outstanding at any one time does not to exceed $15,000,0001,500,000; and
(m) accrual of interest, accretion or amortization of original issue discount, or the payment of interest in kind, in each case, on Indebtedness that otherwise constitutes Indebtedness permitted by this Section 8.1.
Appears in 1 contract
Samples: Loan and Security Agreement (Ranger Energy Services, Inc.)
