Indebtedness; Certain Equity Securities. (a) The Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except: (i) Term Loans, other than any Incremental Term Loans, and Letters of Credit; (ii) Indebtedness existing on the Restatement Effective Date and set forth in Schedule 6.01 and extensions, renewals, refinancings and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than by the amount of any fees or expenses incurred in the refinancing thereof) or result in an earlier maturity date or decreased weighted average life thereof; (iii) Indebtedness of the Borrower to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings or any other Restricted Subsidiary, in each case subject to Section 6.04; (iv) Guarantees by the Borrower and by any Restricted Subsidiary of Indebtedness of Holdings, the Borrower or any other Subsidiary, provided that such Guarantees are permitted by Section 6.04; (v) Indebtedness of the Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence; (vi) 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 (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof; provided that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $25,000,000 at any time outstanding; (vii) Indebtedness of the China JV in an aggregate principal amount not to exceed $20,000,000 at any time outstanding; provided that such Indebtedness is (A) secured only by assets of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary; (viii) unsecured reimbursement obligations (contingent or otherwise) in respect of letters of credit issued to support obligations of the Borrower or any Restricted Subsidiary incurred in the ordinary course of business; provided that (A) the aggregate amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not at any time exceed $5,000,000 and (B) any disbursement in respect of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement is made; and (ix) other Funded Indebtedness if, on the date of the creation, issuance, incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such date. (b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby. (c) Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock), except that (i) Holdings may issue preferred stock or other preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted Subsidiary. (d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term Loans, other than any Incremental Term Loans, and Letters of CreditIndebtedness created under the Loan Documents;
(ii) Indebtedness existing on the Restatement Effective Date date hereof and set forth in Schedule 6.01 and extensions, renewals, refinancings renewals and replacements of any such Indebtedness, provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that do was not increase an obligor with respect to the outstanding Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount thereof (other than by that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any fees or expenses incurred in the refinancing thereofaccrued but unpaid interest and redemption premium thereon), (C) or result in shall not have an earlier maturity date or decreased shorter weighted average life thereofthan the Indebtedness being extended, renewed or replaced and (D) shall not have terms (including covenants, events of default, remedies, redemption provisions and sinking fund provisions, but excluding financial terms such as interest rates and redemption provisions) less favorable in any material respect to the Lenders than the terms of the Indebtedness being extended, renewed or replaced;
(iii) Indebtedness outstanding under the Revolving Credit Agreement and extensions, renewals and replacements of such Indebtedness, provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Borrower to Holdings Indebtedness being extended, renewed or replaced (plus any Restricted Subsidiary accrued but unpaid interest and redemption premium thereon), (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replaced, (D) if applicable, shall rank pari passu or junior in right of payment in respect of the Collateral and with the obligations in respect of the Term Loans and (E) shall not have terms (including covenants, events of default, remedies, redemption provisions and sinking fund provisions, but excluding financial terms such as interest rates and redemption provisions) less favorable in any Restricted Subsidiary material respect to the Borrower, Holdings or any other Restricted Subsidiary, in each case subject to Section 6.04Lenders than the terms of the Revolving Credit Agreement;
(iv) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Senior Leverage Ratio shall not exceed 5.00 to 1.00;
(v) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary, provided (A) that Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary Loan Party shall be subject to Section 6.04 and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary Loan Party to any Subsidiary that is not a Subsidiary Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent;
(vi) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Restricted Subsidiary of Indebtedness of Holdings, the Borrower or any other Subsidiary, provided that such Guarantees are (A) the Indebtedness so Guaranteed is permitted by this Section 6.04(other than clause (a)(ii) or (a)(viii)), (B) Guarantees by the Borrower or any Subsidiary Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 6.04 and (C) Guarantees permitted under this clause (vi) shall be subordinated to the Obligations of the applicable Subsidiary Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations;
(vA) Indebtedness of the Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vi) 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 (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) 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, provided that such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, and (B) extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase so long as the outstanding principal amount thereof; of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon), provided that the aggregate principal amount of Indebtedness permitted by this clause (vivii) shall not exceed $25,000,000 5,000,000 at any time outstanding;
(viiviii) Indebtedness of any Person that becomes a Subsidiary after the China JV date hereof, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), provided that the aggregate principal amount of Indebtedness permitted by this clause (viii) shall not exceed $5,000,000 at any time outstanding;
(ix) other unsecured Indebtedness of the Borrower or any Subsidiary in an aggregate principal amount not to exceed exceeding $20,000,000 5,000,000 at any time outstanding; provided that such Indebtedness is (A) secured only by assets of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
(viiix) unsecured reimbursement Indebtedness owed to any Person (including obligations (contingent or otherwise) in respect of letters of credit issued for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to support reimbursement or indemnification obligations of the Borrower or any Restricted Subsidiary to such Person, in each case incurred in the ordinary course of business; provided that ;
(Axi) Indebtedness of the aggregate amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not at Borrower or any time exceed $5,000,000 and (B) any disbursement Subsidiary in respect of any such letter performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees and similar obligations (other than in respect of credit shall be reimbursed other Indebtedness), in full within three Business Days after such disbursement is made; andeach case provided in the ordinary course of business;
(ixxii) Indebtedness in respect of Swap Agreements permitted by Section 6.07;
(xiii) Capital Lease Obligations of the Borrower or any Subsidiary resulting from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other Funded Indebtedness property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of the creation, issuance, such incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumedon a Pro Forma Basis, the date such Funded Indebtedness becomes secured by such collateral), (x) the Senior Leverage Ratio is less shall not exceed 5.00 to 1.00; and
(xiv) Guarantees and/or indemnities (other than 4.00 to 1.00 in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters (y) if such Indebtedness is Secured Funded Indebtednessincluding environmental, the Secured Leverage Ratio is less than 2.5 to 1.0fraud, misappropriation, bankruptcy and other customary non-recourse carveouts), in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) in connection with investments or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such dateotherwise permitted under this Agreement.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, Documents and the Revolving Credit Agreement and (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under clause Sections 6.01(a)(vi), (a)(iiix), (xi), (xii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted herebyxiv).
(c) Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, issue any preferred stock Equity Interests except in the case of Holdings or other the Revolving Borrower, preferred Equity Interests (including that are Qualified Equity Interests or trust preferred securities in an aggregate principal amount not exceeding $150,000,000 at any Disqualified Stock)time outstanding, except provided that (i) Holdings may issue preferred stock or other any such preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted or trust preferred securities issued by clause (a)(ix) of this Section 6.01 as if such clause applied the Revolving Borrower to Holdings and (ii) Holdings, for purposes of matching preferred Equity Interests or trust preferred securities issued by Holdings shall be excluded from the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted Subsidiarycalculation of such amount.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term LoansIndebtedness created under the Loan Documents and any Permitted Refinancing Indebtedness incurred to refinance any Indebtedness permitted under this clause (i), other than any Incremental Term Loans, and Letters provided that the aggregate Revolving Commitments shall be reduced by an amount equal to the principal amount of CreditRevolving Loans so refinanced;
(ii) Indebtedness (other than the Existing Subordinated Debt) existing on the Restatement Effective Date and set forth in Schedule 6.01 and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than by the amount of any fees or expenses incurred in the refinancing thereof) or result in an earlier maturity date or decreased weighted average life thereof;
(iii) subject to Section 6.04, Indebtedness of the Borrower to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings Borrower or any other Restricted Subsidiary, in each case subject to Section 6.04;
(iv) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Restricted Subsidiary of Indebtedness of Holdings, the Borrower or any other Subsidiary, ; provided that such (A) Guarantees are permitted by Section 6.04;
(v) Indebtedness of the Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect of any Subsidiary that is not a Loan Party shall be subject to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrenceSection 6.04 and (B) a Restricted Subsidiary that is not a Loan Party shall not Guarantee any Indebtedness of any Loan Party;
(viv) 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 (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof; provided that (A) such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement and (B) the aggregate principal amount of Indebtedness permitted by this clause (viv) at any time outstanding shall not exceed $25,000,000 10,000,000;
(vi) Indebtedness of any Person that becomes a Restricted Subsidiary after the Effective Date and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof; provided that (a) such Indebtedness exists at any the time outstandingsuch Person becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary and (b) if such Person becomes a Restricted Subsidiary on or after the Restatement Effective Date, such Indebtedness is unsecured (or is secured on a junior basis to the Obligations) and is subordinated to the Obligations on terms no less favorable to the Lenders than the Existing Subordinated Debt;
(vii) the Existing Subordinated Debt and any Permitted Refinancing Indebtedness incurred to refinance any Indebtedness permitted under this clause (vii); provided that such Permitted Refinancing Indebtedness shall not include any Permitted Senior Unsecured Debt other than the PIK Senior Notes;
(viii) subject to paragraph (d) of this Section, Permitted Senior Unsecured Debt;
(ix) Indebtedness in respect of earn-outs relating to Permitted Acquisitions that are based on the income of the China JV assets acquired in such Permitted Acquisition after the consummation thereof;
(x) Indebtedness to the seller in respect of any Permitted Acquisition; provided such Indebtedness is subordinated to the Obligations on terms no less favorable to the Lenders than the Existing Subordinated Debt; and
(xi) Indebtedness secured by Liens permitted under Section 6.02(a)(iv); and
(xii) other unsecured Indebtedness in an aggregate principal amount not to exceed exceeding $20,000,000 5,000,000 at any time outstanding; provided that such Indebtedness is (A) secured only by assets of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
(viii) unsecured reimbursement obligations (contingent or otherwise) in respect of letters of credit issued to support obligations of the Borrower or any Restricted Subsidiary incurred in the ordinary course of business; provided that (A) the aggregate amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not at any time exceed $5,000,000 and (B) any disbursement in respect of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement is made; and
(ix) other Funded Indebtedness if, on the date of the creation, issuance, incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such date.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 Permitted Holdings PIK Debt, and (iii) Guarantees permitted by subject to paragraph (d) of this Section, Permitted Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted herebyDebt.
(c) Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, (i) issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock), except that other than (iA) Holdings may issue preferred stock or other preferred Equity Interests of issued by Holdings that are is not Disqualified Stock and Disqualified Stock if such issuance would be permitted or (B) preferred stock that is issued by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted Subsidiary.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement not Disqualified Stock) or (ii) designate any other Indebtedness as “Designated Senior Indebtedness” under and as defined in the Permitted Debt Documents with respect to the Existing Subordinated Debt (or any Permitted Refinancing Indebtedness thereof) or any analogous definition in the Permitted Debt Documents for any other Subordinated Debt.
(d) Notwithstanding the foregoing, (i) 100% of the Net Proceeds of any Permitted Senior Unsecured Debt (exclusive of PIK Senior Notes) shall be applied in accordance with Section 2.11(c)) and (ii) the aggregate principal amount of Permitted Holdings Debt that is pledged as Collateralnot Permitted Holdings PIK Debt shall not exceed $50,000,000 outstanding at any time.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, create, issue, incur, assume or permit to exist any Indebtedness, any Attributable Debt in respect of any Sale and Leaseback Transaction, any Third Party Interests or any Disqualified Preferred Stock except:
(i) Term Loans(A) Indebtedness under the Senior Loan Documents (including Indebtedness incurred pursuant to any Refinancing Amendment executed in accordance with Section 6.01(c)) and, other than any in each case, Refinancing Indebtedness in respect thereof (including (x) Refinancing Indebtedness in respect of Revolving Commitments or Other Revolving Commitments and (y) Refinancing Indebtedness consisting of Permitted First Priority Debt) and (B) Existing Additional Senior Debt, Permitted First Priority Debt and Refinancing Indebtedness in respect thereof (including Indebtedness under an Incremental Term Loans, and Letters of CreditSenior Debt Refinancing Facility incurred pursuant to an Incremental Facility Amendment entered into pursuant to Section 2.21);
(ii) unsecured Indebtedness existing on of the Restatement Effective Date Borrower that is not Guaranteed by any Subsidiary, that does not mature or require scheduled payments of principal prior to the date that is 90 days after the Tranche 7 Maturity Date, and set forth that has covenants and events of default which are determined in Schedule 6.01 and extensions, renewals, refinancings and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than good faith by the amount senior management of any fees or expenses incurred the Borrower to be on market terms, and Refinancing Indebtedness issued in the refinancing thereof) or result in an earlier maturity date or decreased weighted average life thereofrespect of such Indebtedness;
(iii) Indebtedness of the Borrower to Holdings or any Restricted Subsidiary and the Subsidiaries in respect of any Restricted Subsidiary intercompany Investments permitted under Section 6.04; provided that such Indebtedness is subordinated to the Borrower, Holdings or any other Restricted Subsidiary, in each case subject Senior Loan Obligations pursuant to Section 6.04terms substantially the same as those forth on Annex 2 hereto;
(iv) Guarantees by the Borrower and by any Restricted Subsidiary of Indebtedness of Holdings, the Borrower or any other Subsidiary, provided that such Guarantees are permitted by Section 6.04Existing Non-Guaranteed Indebtedness;
(v) Indebtedness of the Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrenceExisting Second Priority Debt;
(vi) Indebtedness of Existing Guaranteed Unsecured Indebtedness;
(vii) Permitted Second Priority Debt incurred after the Borrower or any Restricted Subsidiary incurred to finance the acquisition2013 Restatement Effective Date in an aggregate principal amount, construction or improvement of any fixed or capital assets, including Capital Lease Obligations (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection together with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings and replacements of any such Indebtedness that do not increase the outstanding aggregate principal amount thereofof Indebtedness incurred pursuant to clause (viii) of this Section 6.01(a), not in excess of $1,500,000,000 at any time outstanding; provided that the aggregate principal amount of Indebtedness permitted by Permitted Second Priority Debt incurred under this clause which matures or requires scheduled payments of principal prior to the date that is 90 days after the Xxxxxxx 0 Xxxx Xxxxxxxx Date, together with the aggregate principal amount of any Permitted Unsecured Indebtedness and Disqualified Preferred Stock incurred or issued under clause (viviii) of this Section 6.01(a) which matures, requires scheduled payments of principal or is mandatorily redeemable prior to the date that is 90 days after the Xxxxxxx 0 Xxxx Xxxxxxxx Date, shall not exceed $25,000,000 750,000,000 at any time outstanding;
(vii) Indebtedness of the China JV in an aggregate principal amount not to exceed $20,000,000 at any time outstanding; provided that such Indebtedness is (A) secured only by assets of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
(viii) unsecured reimbursement obligations (contingent or otherwise) in respect of letters of credit issued to support obligations of the Borrower or any Restricted Subsidiary incurred in the ordinary course of business; provided that (A) the aggregate amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not at any time exceed $5,000,000 and (B) any disbursement in respect of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement is made; and
(ix) other Funded Indebtedness if, on the date of the creation, issuance, incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such date.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock), except that (i) Holdings may issue preferred stock or other preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted Subsidiary.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.
Appears in 1 contract
Samples: Credit Agreement (Rite Aid Corp)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term Loans, other than Indebtedness created under the Loan Documents and the Indenture Documentation and any Incremental Term Loans, and Letters of CreditIndebtedness evidenced by the Italian Notes;
(ii) Indebtedness existing (or incurred pursuant to contractual loan commitments existing) on the Restatement Effective Date and set forth in Schedule 6.01 and extensions, renewals, refinancings and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than by the amount of any fees or expenses incurred in the refinancing thereofcommitments therefor) or result in an earlier maturity date or decreased weighted average life thereof;
(iii) Indebtedness of the Borrower to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings Borrower or any other Restricted Subsidiary, in each case subject to Section 6.04;
(iv) Guarantees by the Borrower and by any Restricted Subsidiary of Indebtedness of Holdings, the Borrower or any other Subsidiary, provided that such Guarantees are permitted by the Borrower or any Subsidiary Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 6.04;
(v) Indebtedness of the Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vi) 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 (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof; , provided that the aggregate principal amount of Indebtedness permitted by this clause (viv) shall not exceed $25,000,000 5,000,000 at any time outstanding;
(viivi) Indebtedness of the China JV Borrower or any Subsidiary in respect of workers' compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion guarantees provided by the Borrower and the Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers' compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vii) in each case with the consent of the Required Lenders to be given or withheld in their absolute discretion, Indebtedness in respect of a Permitted Receivables Financing, provided that the Net Proceeds resulting from the sale, transfer or other disposition of Receivables in connection with such Permitted Receivables Financing are applied in accordance with Section 2.08(c);
(viii) Indebtedness of the Borrower or any Subsidiary that was (A) Indebtedness of any other Person existing at the time such other Person was merged with or became a Subsidiary, including Indebtedness incurred in connection with, or in contemplation of, such other Person's merging with or becoming a Subsidiary, and extensions, renewals, refinancings and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof or result in an earlier maturity date or decreased weighted average life thereof, provided that the aggregate principal amount of Indebtedness permitted under this clause (viii) shall not exceed $5,000,000 at any time outstanding;
(ix) non-interest bearing Indebtedness not for borrowed money, in the nature of customer deposits; and
(x) other unsecured Indebtedness in an aggregate principal amount not to exceed exceeding $20,000,000 5,000,000 at any time outstanding; , provided that such the aggregate principal amount of Indebtedness is (A) secured only by assets of the China JV and Subsidiaries that are not Subsidiary Loan Parties permitted by assets of Holdings, the Borrower of any other Restricted Subsidiary and this clause (Bx) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
(viii) unsecured reimbursement obligations (contingent or otherwise) in respect of letters of credit issued to support obligations of the Borrower or any Restricted Subsidiary incurred in the ordinary course of business; provided that (A) the aggregate amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not exceed $5,000,000 at any time exceed $5,000,000 and (B) any disbursement in respect of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement is made; and
(ix) other Funded Indebtedness if, on the date of the creation, issuance, incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such dateoutstanding.
(b) Holdings The Borrower will not, and will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock)Interests, except that (i) Holdings the Borrower may issue the Cumulative Preferred Stock; (ii) the Borrower may issue preferred stock or other preferred Equity Interests of Holdings the Borrower that are do not Disqualified Stock require mandatory cash dividends or redemptions and Disqualified Stock if such issuance would be permitted by clause (a)(ix) do not provide for any right on the part of this Section 6.01 as if such clause applied the holder to Holdings require redemption, repurchase or repayment thereof, in each case prior to the date that is 180 days after the Maturity Date and (iiiii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ ' qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted Subsidiary.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.
Appears in 1 contract
Samples: Revolving Credit Agreement (Memc Electronic Materials Inc)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term Loans, other than any Incremental Term Loans, (x) Indebtedness created under the Loan Documents and Letters (y) Indebtedness created under the Loan Documents (as defined in the Credit Agreement) not to exceed an aggregate principal amount of Credit$1,225,000,000;
(ii) (A) the Convertible Notes and (B) Subordinated Refinancing Indebtedness in respect of the Convertible Notes or Additional Subordinated Debt incurred pursuant to this clause (B);
(iii) Indebtedness existing on the Restatement Effective Date date hereof and set forth in Schedule 6.01 (other than the Existing Credit Agreement) and refinancings, extensions, renewals, refinancings renewals and replacements of any such Indebtedness, provided that such refinancing, extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that do was not increase an obligor with respect to the outstanding Indebtedness being refinanced, extended, renewed or replaced, (B) shall not be in a principal amount thereof that exceeds the principal amount of the Indebtedness being refinanced, extended, renewed or replaced (other than plus any accrued but unpaid interest and premium or penalty payable by the amount terms of any such Indebtedness thereon and reasonable fees or and expenses incurred in the refinancing thereofassociated therewith), (C) or result in shall not have an earlier maturity date or decreased shorter weighted average life thereofthan the Indebtedness being refinanced, extended, renewed or replaced and (D) if the Indebtedness being refinanced, extended, renewed or replaced is subordinated to the Obligations, such Indebtedness shall be subordinated to the Obligations on the same terms as the Indebtedness being refinanced, extended, renewed or replaced;
(iiiiv) Indebtedness of the Borrower to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings Borrower or any other Restricted SubsidiarySubsidiary (other than Indebtedness of any Broker Dealer Subsidiary to a Subsidiary that is not a Loan Party), in each case provided that (A) Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary Loan Party shall be subject to Section 6.04, (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary Loan Party to any Subsidiary that is not a Subsidiary Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent and (C) Indebtedness of the Additional Borrower to Borrower shall be pursuant to an intercompany loan or note (the “Additional Borrower Intercompany Loan”) reasonably satisfactory to the Administrative Agent and pledged as Collateral under the Security Documents;
(ivv) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Restricted Subsidiary (other than any Broker Dealer Subsidiary) of Indebtedness of Holdings, the Borrower or any other Subsidiary, provided that such Guarantees are (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(iii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 6.04, (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (D) none of the Convertible Notes or Additional Subordinated Debt shall be Guaranteed by any Subsidiary, unless, in the case of any Additional Subordinated Debt, such Subsidiary is a Loan Party that has Guaranteed the Obligations pursuant to the Collateral Agreement;
(vA) Indebtedness of the Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or (other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vithan any Broker Dealer Subsidiary) 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 (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) 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, provided that such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, and (B) extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase so long as the outstanding principal amount thereof; of such refinancings, extensions, renewals and replacements does not exceed the principal amount of the Indebtedness being refinanced, extended, renewed or replaced (plus any accrued but unpaid interest and premium or penalty payable by the terms of such Indebtedness thereon and reasonable fees and expenses associated therewith), provided that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $25,000,000 20,000,000 at any time outstanding;
(vii) Indebtedness of any Person that is merged or consolidated with and into the China JV Borrower or any Subsidiary (other than a Broker Dealer Subsidiary) or of any Person that otherwise becomes a Subsidiary (other than a Broker Dealer Subsidiary) after the date hereof, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium payable by the terms of such Indebtedness thereon), provided that the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $10,000,000 at any time outstanding;
(viii) other unsecured Indebtedness of the Borrower and the Subsidiaries (other than the Broker Dealer Subsidiaries) in an aggregate principal amount not to exceed exceeding $20,000,000 at any time outstanding; , provided that such the aggregate principal amount of Indebtedness is (A) secured only by assets of the China JV and Subsidiaries that are not Subsidiary Loan Parties permitted by assets of Holdings, the Borrower of this clause (viii) shall not exceed $5,000,000 at any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiarytime outstanding;
(viiiix) unsecured reimbursement Indebtedness owed to any Person (including obligations (contingent or otherwise) in respect of letters of credit issued for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to support reimbursement or indemnification obligations of the Borrower or any Restricted Subsidiary to such Person, in each case incurred in the ordinary course of business; ;
(x) Indebtedness of the Borrower or any Subsidiary (other than any Broker Dealer Subsidiary) in respect of performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees and similar obligations (other than in respect of other Indebtedness), in each case provided that in the ordinary course of business;
(xi) Indebtedness in respect of Swap Agreements permitted by Section 6.07;
(xii) (A) the aggregate amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not at any time exceed $5,000,000 and (B) any disbursement in respect of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement Additional Subordinated Debt that is made; and
(ix) other Funded Indebtedness if, issued for cash payable on the date of issuance thereof or as consideration for a Permitted Acquisition, provided that (1) if such Additional Subordinated Debt is issued for cash, the creation, issuance, incurrence or assumption Net Proceeds of such Indebtedness (orAdditional Subordinated Debt are used, in promptly after such Net Proceeds are received by the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral)Borrower, (x) the Leverage Ratio is less than 4.00 to 1.00 and consummate one or more Permitted Acquisitions or (y) to prepay Term Loans pursuant to Section 2.11(c), (2) no Default has occurred and is continuing or would result therefrom and (3) the Borrower is in compliance on a Pro Forma Basis after giving effect to the incurrence of such Additional Subordinated Debt with the covenants contained in Sections 6.12 and 6.13 recomputed as of the last day of the most-recently ended fiscal quarter of the Borrower prior to the issuance of such Additional Subordinated Debt and has delivered to the Administrative Agent a certificate of a Financial Officer to such effect, together with all relevant financial information reasonably requested by the Administrative Agent, including reasonably detailed calculations demonstrating compliance with clause (3) above (which calculations shall, if such Indebtedness is Secured Funded Indebtedness, made as of the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for last day of any fiscal quarter of the most recent period of four fiscal quarters Borrower for which the Borrower has not delivered to the Administrative Agent the financial statements have been and certificate of a Financial Officer required to be delivered pursuant to by Section 5.01(a) or (b) and Section 5.01(c), as applicablerespectively, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicableaccompanied by a reasonably detailed calculation of Consolidated EBITDA and Consolidated Cash Interest Expense for the relevant period) and all (B) Subordinated Refinancing Indebtedness in respect of Additional Subordinated Debt issued pursuant to be prepaid with clause (A) above or this clause (B);
(xiii) Indebtedness arising from the proceeds honoring by a bank or financial institution of a check or similar instrument drawn against insufficient funds in the ordinary course of business, so long as such Funded Indebtedness on is repaid within five Business Days; and
(xiv) Indebtedness of TRF owing to Borrower or within 10 days after such dateanother Subsidiary not to exceed $10,000,000 at any time outstanding.
(b) Holdings The Borrower will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower willnot, nor will they it permit any Restricted Subsidiary to, issue any preferred stock Equity Interests or other any Disqualified Equity Interests, except in the case of the Borrower, (i) preferred Equity Interests that are Qualified Equity Interests, (ii) preferred Equity Interests issued and outstanding on the Effective Date and set forth on Schedule 6.01(b), (iii) preferred Equity Interests (including any Disqualified x) having terms that, taken as a whole, are no less favorable to the Lenders than those of the Series C Preferred Stock), except that as determined in good faith by senior management of the Borrower, (iy) Holdings may issue preferred stock the proceeds of which are used to redeem, repurchase or other preferred Equity Interests retire the outstanding shares of Holdings that are not Disqualified Series C Preferred Stock and Disqualified (z) the aggregate liquidation preference of which is no greater than that of the shares of Series C Preferred Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings being redeemed, repurchased or refinanced and (iiiv) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted SubsidiarySeries D Preferred Stock.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Nasdaq Stock Market Inc)
Indebtedness; Certain Equity Securities. (a) The Each of Holdings and the Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term Loans, other than any Incremental Term Loans, and Letters of CreditIndebtedness created under the Loan Documents;
(ii) Indebtedness existing on the Restatement Effective Date and set forth in Schedule 6.01 and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than by the amount of any fees or expenses incurred in the refinancing thereof) or result in an earlier maturity date or decreased weighted average life thereof;
(iii) Indebtedness of the Borrower to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings Borrower or any other Restricted Subsidiary, in each case ; provided that Indebtedness of any Subsidiary that is not a Loan Party to any Loan Party shall be subject to Section 6.04;
(iv) Guarantees by (A) Holdings of Indebtedness of the Borrower or any Subsidiary, (B) the Borrower of Indebtedness of any Subsidiary and by (C) any Restricted Subsidiary of Indebtedness of Holdings, the Borrower or any other Subsidiary, ; provided that such Guarantees the aggregate amount of Indebtedness of Subsidiaries that are permitted not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitations set forth in Section 6.046.04(d)(ii);
(v) Indebtedness of the Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vi) 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 (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof; provided that (A) such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement and (B) the aggregate principal amount of Indebtedness permitted by this clause (v) shall not exceed $10,000,000 at any time outstanding, and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof;
(vi) Indebtedness of any Person that becomes a Subsidiary after the Effective Date; provided that (A) such Indebtedness exists at the time such Person becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary and (B) the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $25,000,000 10,000,000 at any time outstanding, and extensions, renewals and replacements of any such Indebtedness that do not increase the principal amount thereof;
(vii) Indebtedness of the China JV Italian Receivables Subsidiary in connection with the Italian Receivables Program not to exceed $6,000,000;
(viii) Indebtedness incurred (A) under Section 16(B) of the Transition Distribution Agreement, (B) under Section 12.2 of the Distribution Contract in connection with the termination of such Contract, and (C) in connection with other repurchases of inventory and/or equipment, in an aggregate principal amount not to exceed $20,000,000 10,000,000;
(ix) Indebtedness incurred in connection with the posting of court-ordered bonds to guarantee payments of judgments in an aggregate amount not to exceed $5,000,000 at any time outstandingoutstanding (it being understood that the court-ordered bond posted in connection with the Grisoni litigation and listed in Schedule 6.01 hereto, is permitted in addition to the Indebtedness referred to in this clause (ix)); provided that such and
(x) other unsecured Indebtedness is in an aggregate principal amount not exceeding (A) secured only by assets on or prior to the first anniversary of the China JV and not by assets of HoldingsEffective Date, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
(viii) unsecured reimbursement obligations (contingent or otherwise) in respect of letters of credit issued to support obligations of the Borrower or any Restricted Subsidiary incurred in the ordinary course of business; provided that (A) the aggregate amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not at any time exceed $5,000,000 and (B) any disbursement in respect of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement is made; and
(ix) other Funded Indebtedness if, on the date first anniversary of the creation, issuance, incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumedEffective Date, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and lesser of (y) if such Indebtedness is Secured Funded Indebtedness, 3% of Consolidated Assets calculated at the Secured Leverage Ratio is less than 2.5 to 1.0, in end of each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(aquarter and (z) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such date$10,000,000 at any time outstanding.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under Redeemable Preferred Stock; provided that Holdings may issue Redeemable Preferred Stock to the Loan Documentsextent such preferred stock, (ii) Indebtedness permitted under clause (a)(iii) for the purposes of this Section 6.01 and (iii) Guarantees permitted by Holdings of 6.01(a), is deemed to be Indebtedness of Holdings with an aggregate principal amount equal to the Borrower and the Restricted Subsidiaries permitted herebystated value thereof.
(c) Neither Holdings nor the The Borrower willwill not, nor and will they not permit any Restricted Subsidiary to, issue any preferred stock or be or become liable in respect of any obligation (contingent or otherwise) to purchase, redeem, retire, acquire or make any other preferred Equity Interests payment (including other than Restricted Payments permitted under Section 6.07) in respect of any Disqualified Stock), except that (i) Holdings may issue preferred shares of capital stock or other preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying or any option, warrant or other right to acquire any such shares or shares required by applicable law to be held by a Person other than Holdingsof capital stock; provided, however, that nothing in this Section 6.01(c) shall prevent (i) the Borrower or any Restricted Subsidiary.
(d) Neither Holdings nor Subsidiary from acquiring the Borrower will permit the Bermuda IP equity securities of any Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that not owned by it if such purchase is otherwise permitted by this Agreement and Agreement, (ii) any Subsidiary from issuing preferred stock to the Borrower or the Borrower from issuing preferred stock (other than Redeemable Preferred Stock) to Holdings, so long as such preferred stock is pledged as Collateralto the Collateral Agent to secure the Obligations, to the extent required by the Loan Documents, or (iii) any Subsidiary from issuing preferred stock to any third party; provided that for purposes of Section 6.01(a), such preferred stock shall be deemed to be Indebtedness of such Subsidiary with an aggregate principal amount equal to the stated value thereof.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term LoansIndebtedness created under the Loan Documents, other than the Reimbursement Documentation and the Indenture Documentation and any Incremental Term Loans, and Letters of CreditIndebtedness evidenced by the Italian Notes;
(ii) Indebtedness existing (or incurred pursuant to contractual loan commitments existing) on the Restatement Effective Date and set forth in Schedule 6.01 and extensions, renewals, refinancings and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than by the amount of any fees or expenses incurred in the refinancing thereofcommitments therefor) or result in an earlier maturity date or decreased weighted average life thereof;
(iii) Indebtedness of the Borrower to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings Borrower or any other Restricted Subsidiary, in each case subject to Section 6.04;
(iv) Guarantees by the Borrower and by any Restricted Subsidiary of Indebtedness of Holdings, the Borrower or any other Subsidiary, provided that such Guarantees are permitted by the Borrower or any Subsidiary Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 6.04;
(v) Indebtedness of the Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vi) 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 (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof; , provided that the aggregate principal amount of Indebtedness permitted by this clause (viv) shall not exceed $25,000,000 5,000,000 at any time outstanding;
(viivi) Indebtedness of the China JV Borrower or any Subsidiary in respect of workers' compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion guarantees provided by the Borrower and the Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers' compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vii) in each case with the consent of the Required Lenders to be given or withheld in their absolute discretion, Indebtedness in respect of a Permitted Receivables Financing, provided that the Net Proceeds resulting from the sale, transfer or other disposition of Receivables in connection with such Permitted Receivables Financing are applied in accordance with Section 2.08(d);
(viii) Indebtedness of the Borrower or any Subsidiary that was (A) Indebtedness of any other Person existing at the time such other Person was merged with or became a Subsidiary, including Indebtedness incurred in connection with, or in contemplation of, such other Person's merging with or becoming a Subsidiary, and extensions, renewals, refinancings and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof or result in an earlier maturity date or decreased weighted average life thereof, provided that the aggregate principal amount of Indebtedness permitted under this clause (viii) shall not exceed $5,000,000 at any time outstanding;
(ix) non-interest bearing Indebtedness not for borrowed money, in the nature of customer deposits; and
(x) other unsecured Indebtedness in an aggregate principal amount not to exceed exceeding $20,000,000 5,000,000 at any time outstanding; , provided that such Indebtedness is (A) secured only by assets of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
(viii) unsecured reimbursement obligations (contingent or otherwise) in respect of letters of credit issued to support obligations of the Borrower or any Restricted Subsidiary incurred in the ordinary course of business; provided that (A) the aggregate principal amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not at any time exceed $5,000,000 and (B) any disbursement in respect of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement is made; and
(ix) other Funded Indebtedness if, on the date of the creation, issuance, incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such date.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock), except that (i) Holdings may issue preferred stock or other preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted Subsidiary.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise Parties permitted by this Agreement and is pledged as Collateralclause (x) shall not exceed $5,000,000 at any time outstanding.
Appears in 1 contract
Samples: Revolving Credit Agreement (Memc Electronic Materials Inc)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and Holdings and Neither Indemnitor nor the Borrower will, nor will not Indemnitor or Borrower permit any of the Indemnitor Group Restricted Subsidiary Subsidiaries to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term Loans, Indebtedness created under the Current Credit Agreement and under the other than Loan Documents (including any Incremental Term Loans, and Letters Indebtedness incurred pursuant to Section 2.21 or 2.23 of Creditthe Current Credit Agreement (as in effect on the date hereof));
(ii) (A) the Senior Notes and (B) Refinancing Indebtedness existing on in respect of the Restatement Effective Date Senior Notes (it being understood and agreed that, for purposes of this Section, any Indebtedness that is incurred for the purpose of repurchasing or redeeming any Senior Notes (or any Refinancing Indebtedness in respect thereof) shall, if otherwise meeting the requirements set forth in Schedule 6.01 the definition of the term “Refinancing Indebtedness”, be deemed to be Refinancing Indebtedness in respect of the Senior Notes (or such Refinancing Indebtedness), and extensionsshall be permitted to be incurred and be in existence pursuant to this Section 3.01(a) notwithstanding that the proceeds of such Refinancing Indebtedness shall not be applied to make such repurchase or redemption of the Senior Notes (or such Refinancing Indebtedness) immediately upon the incurrence thereof, renewals, refinancings and replacements if the proceeds of any such Refinancing Indebtedness that do not increase are applied to make such repurchase or redemption no later than 90 days following the outstanding principal amount thereof (other than by date of the amount of any fees or expenses incurred in the refinancing thereof) or result in an earlier maturity date or decreased weighted average life incurrence thereof;
(iii) Indebtedness (and Debt-Related Guarantees thereof) existing on the Effective Date or the Distribution Date and to the extent having a principal amount in excess of $5,000,000 individually or $10,000,000 in the aggregate or arising after the Effective Date and on or before the Distribution Date (and identified as such), set forth in Schedule 6.01 of the Current Credit Agreement (in each case, except for intercompany Indebtedness), any Refinancing Indebtedness in respect thereof and any intercompany Indebtedness existing on the Effective Date or the Distribution Date arising out of, or in connection with, the Transactions (including the Post- Effective Date Repayment);
(iv) Indebtedness of the Borrower to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary to Holdings, the Borrower, Holdings Borrower or any other Restricted SubsidiarySubsidiary so long as (A) such Indebtedness of any Subsidiary that is not a Loan Party to Holdings, the Borrower or any other Loan Party shall be permitted under Section 3.04(f) and (B) such Indebtedness of the Borrower or any other Loan Party owing to any Restricted Subsidiary shall be subordinated in each case subject right of payment to Section 6.04the Obligations on the terms set forth in the Global Intercompany Note (or any other agreement with substantially similar terms of subordination reasonably satisfactory to the Administrative Agent); provided that Restricted Subsidiaries that are not Loan Parties shall not be required to become party to the Global Intercompany Note until the 120th day after the Effective Date (or such longer period as agreed by the Administrative Agent, acting reasonably);
(ivv) Debt-Related Guarantees by the Borrower of Indebtedness of any Restricted Subsidiary and by any Restricted Subsidiary of Indebtedness of Holdings, the Borrower or any other Subsidiary, Restricted Subsidiary (other than Indebtedness incurred pursuant to clause (a)(iii) or (a)(vii) of this Section 3.01); provided that such Guarantees are (A) the Indebtedness so Guaranteed is permitted by Section 6.04;
this Section, (vB) Indebtedness of Debt-Related Guarantees by the Borrower or any other Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 3.04, and (C) Debt-Related Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Restricted Subsidiary in respect to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations (if such Indebtedness is subordinated to the Obligations) and (D) none of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided the Senior Notes shall be Guaranteed by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, any Subsidiary unless such obligations are reimbursed within 30 days following such drawing or incurrenceSubsidiary is a Loan Party;
(viA) Indebtedness of any member of the Borrower or any Indemnitor Restricted Subsidiary Group incurred to finance the acquisition, construction construction, repair, replacement or improvement of any fixed or capital assets, including Capital Lease Obligations (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed by any member of Indemnitor Restricted Group in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof; provided that such Indebtedness is incurred prior to or within 270 days after such acquisition or the completion of such construction, repair, replacement or improvement, and (B) Refinancing Indebtedness in respect of Indebtedness incurred or assumed pursuant to clause (A) above; provided further that at the time of incurrence thereof, the aggregate principal amount of Indebtedness permitted by this clause (vi), together with any sale and leaseback transaction incurred pursuant to Section 3.06, outstanding under this clause (vi) at any time shall not exceed the greater of (x) $25,000,000 45,000,000 and (y) 1.00% of Consolidated Total Assets.
(A) Indebtedness of any Person that becomes a Indemnitor Group Restricted Subsidiary (or of any Person not previously a Indemnitor Group Restricted Subsidiary that is merged or consolidated with or into a Indemnitor Group Restricted Subsidiary in a transaction permitted hereunder) after the Distribution Date, or Indebtedness of any Person that is assumed by Indemnitor or any such Indemnitor Group Restricted Subsidiary in connection with an acquisition of assets by Indemnitor or such Indemnitor Group Restricted Subsidiary in an acquisition permitted by Section 3.04; provided that such Indebtedness exists at any the time outstandingsuch Person becomes a Indemnitor Group Restricted Subsidiary (or is so merged or consolidated) or such assets are acquired and is not created in contemplation of or in connection with such Person becoming a Indemnitor Group Restricted Subsidiary (or such merger or consolidation) or such assets being acquired and (B) Refinancing Indebtedness in respect of Indebtedness incurred or assumed, as applicable, pursuant to clause (A) above;
(viiviii) other Indebtedness of the China JV in an aggregate principal amount not to exceed $20,000,000 outstanding under this clause (viii) at any time outstandingnot exceeding, the greater of (x) $135,000,000 and (y) 3.00% of Consolidated Total Assets,
(ix) Indebtedness incurred pursuant to Permitted Receivables Facilities; provided that the Indebtedness outstanding in reliance on this clause (ix) shall not exceed, at the time of incurrence thereof, the greater of (x) $100,000,000 and (y) 2.25% of Consolidated Total Assets in the aggregate;
(x) Indebtedness and obligations in respect of self-insurance and obligations in respect of bids, tenders, trade contracts (other than for payment of Indebtedness), leases (other than Capital Lease Obligations), public or statutory obligations, surety, stay, customs and appeal bonds, performance bonds and other obligations of a like nature and similar obligations or obligations in respect of letters of credit, bank guarantees or similar instruments related thereto, in each case provided in the ordinary course of business;
(xi) Indebtedness in respect of Hedging Agreements permitted by Section 3.07 (including any Back to Back Arrangements);
(xii) Indebtedness in respect of any overdraft facilities, employee credit card programs, netting services, automated clearinghouse arrangements and other cash management and similar arrangements in the ordinary course of business; provided, that with respect to any such Indebtedness that constitutes Secured Cash Management Obligations and is incurred in reliance on this clause (xii) by Indemnitor Group Restricted Subsidiaries that are not Loan Parties, at the time such Indebtedness is incurred and after giving effect thereto, the Non- Guarantor Debt Basket shall not be exceeded;
(Axiii) secured only by assets Indebtedness in the form of deferred compensation (including indemnification obligations, obligations in respect of purchase price adjustments, earnouts, non-competition agreements and other contingent arrangements) or other arrangements representing acquisition consideration or deferred payments of a similar nature incurred in connection with any acquisition or other investment permitted under this Agreement;
(xiv) Refinancing Term Loan Indebtedness incurred pursuant to Section 2.23 of the China JV and Current Credit Agreement (as in effect on the Distribution Date);
(xv) Alternative Incremental Facility Debt, provided that the aggregate principal amount of such Alternative Incremental Facility Debt shall not by assets exceed the amount permitted under Section 2.21 of the Current Credit Agreement (as in effect on the Distribution Date);
(xvi) Indebtedness representing deferred compensation to directors, officers, consultants or employees of Holdings, the Borrower of any other and the Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
(viii) unsecured reimbursement obligations (contingent or otherwise) in respect of letters of credit issued to support obligations of the Borrower or any Restricted Subsidiary Subsidiaries incurred in the ordinary course of business;
(xvii) Indebtedness consisting of promissory notes issued by any Loan Party to current or former officers, directors, consultants and employees or their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of Holdings permitted by Section 3.08;
(xviii) [Reserved];
(xix) Indebtedness of Indemnitor Group Restricted Subsidiaries that are not Loan Parties under bilateral local law credit and other working capital facilities; provided that at the time such Indebtedness is incurred under this clause (xix) and after giving effect thereto, such incurrence shall not cause the Non-Guarantor Debt Basket to be exceeded (without duplication of any Cash Management Financing Facilities); provided, further that any such Indebtedness secured by a Letter of Credit issued under the Current Credit Agreement in a principal amount not to exceed the face amount of such Indebtedness shall not count toward the aggregate amount permitted under this Section 3.01(a)(xix) (including the Non-Guarantor Debt Basket);
(xx) other Indebtedness of Indemnitor or any of the Indemnitor Group Restricted Subsidiaries so long as (A) after giving thereto on a Pro Forma Basis (1) in the aggregate amount case of all such letters Indebtedness secured by a Lien on the Collateral, the Consolidated Senior Secured Leverage Ratio does not exceed 1.50 to 1.00 and (2) in the case of credit any Indebtedness that is unsecured, (x) the Consolidated Total Leverage Ratio is no greater than 0.50:1.00 less than the applicable maximum Consolidated Total Leverage Ratio set forth in Section 3.12 and unreimbursed disbursements in respect thereof shall not at any time exceed $5,000,000 and (y) the Consolidated Interest Coverage Ratio is greater than or equal to 2.75 to 1.00, (B) any disbursement in respect the incurrence of any such letter of credit Indebtedness pursuant to this clause (xx) by a Indemnitor Group Restricted Subsidiary that is not a Loan Party shall not cause the Non-Guarantor Debt Basket to be reimbursed in full within three Business Days exceeded (after such disbursement is made; and
giving effect thereto on a Pro Forma Basis), (ixC) other Funded Indebtedness if, on the date of the creation, issuance, incurrence or assumption of such Indebtedness (shall not mature or, in the case of Funded unsecured Indebtedness that becomes and Indebtedness secured by collateral after a Lien on the date Collateral that is junior to the Liens securing the Obligations, require any scheduled amortization or require any scheduled amortization or require scheduled payments of principal or shall be subject to any mandatory redemption, repurchase, repayment or sinking fund obligation, in each case, prior to the Latest Maturity Date as of such date, and shall have a weighted average life to maturity not shorter than the longest remaining weighted average life to maturity of the Loans, (D) no Event of Default shall exist or shall result therefrom (it being understood that if the proceeds of the relevant Indebtedness will be applied to finance a Limited Condition Transaction and the Borrower has made an LCT Election, no Event of Default shall exist and be continuing as of the LCT Test Date) and (E) such Indebtedness is created, issued, incurred or assumed, has terms and conditions that in the date such Funded good faith determination of the Borrower are no less favorable to the Borrower (when taken as a whole) to the terms and conditions of the Loan Documents (when taken as a whole);
(xxi) Indebtedness becomes secured by such collateral), constituting obligations arising in respect of Cash Management Services;
(xxxii) Indebtedness constituting Secured Hedging Obligations;
(xxiii) Indebtedness consisting of (A) the Leverage Ratio is less than 4.00 to 1.00 and financing of insurance premiums or (yB) if such take- or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(xxiv) Indebtedness is constituting Secured Funded IndebtednessSupply Chain Financing Obligations;
(xxv) Indebtedness incurred by Indemnitor or a Indemnitor Group Restricted Subsidiary in connection with bankers’ acceptances, discounted bills of exchange or the Secured Leverage Ratio is less than 2.5 to 1.0discounting or factoring of receivables for credit management purposes, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed undertaken in the ordinary course of business on such date (or becoming so secured arm’s length commercial terms on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such date.a non- recourse basis;
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (ixxvi) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted incurred by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock), except that (i) Holdings may issue preferred stock or other preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) HoldingsIndemnitor, the Borrower or any of the Indemnitor Group Restricted Subsidiaries in respect of letters of credit, bank guarantees, bankers’ acceptances or similar instruments issued or created in the ordinary course of business or consistent with past practice, in each case, in respect of workers’ compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other reimbursement-type obligations regarding workers’ compensation claims;
(xxvii) (x) Indebtedness in respect of obligations of the Borrower, Indemnitor or any Indemnitor Group Restricted Subsidiary may issue directors’ qualifying shares to pay the deferred purchase price of goods or shares required services or progress payments in connection with such goods and services; provided that such obligations are incurred in connection with open accounts extended by applicable law to be held by a Person other than Holdingssuppliers on customary trade terms in the ordinary course of business and not in connection with the borrowing of money and (y) Indebtedness in respect of intercompany obligations of the Borrower, the Borrower Indemnitor or any Restricted Subsidiary.Subsidiary in respect of accounts payable incurred in connection with goods sold or services rendered in the ordinary course of business and not in connection with the borrowing of money;
(dxxviii) Neither Holdings nor Indebtedness to a customer to finance the Borrower will permit acquisition of any equipment necessary to perform services for such customer; provided that the Bermuda IP Subsidiary terms of such Indebtedness are consistent with those entered into with respect to create, incur, assume or permit to exist any similar Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed prior to the Borrower Distribution Date, including that (x) the repayment of such Indebtedness is conditional upon such customer ordering a specific volume of goods and (y) such Indebtedness does not bear interest or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.provide for scheduled amortization or maturity;
Appears in 1 contract
Samples: Indemnification and Reimbursement Agreement (Resideo Technologies, Inc.)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term Loans, other than any Incremental Term Loans, and Letters of CreditIndebtedness created under the Loan Documents;
(ii) Indebtedness existing on the Restatement Effective Date and set forth in Schedule 6.01 and 6.01, but not any extensions, renewals, refinancings and renewals or replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than by the amount of any fees or expenses incurred in the refinancing thereof) or result in an earlier maturity date or decreased weighted average life thereofIndebtedness;
(iii) Indebtedness of the Borrower to Holdings or any Restricted Subsidiary of the Borrower and of any Restricted Subsidiary of the Borrower to the Borrower, Holdings Borrower or any other Restricted Subsidiary, in each case Subsidiary of the Borrower; provided that Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary Loan Party shall be subject to Section 6.04;
(iv) Guarantees by the Borrower of Indebtedness of any Subsidiary of the Borrower and by any Restricted Subsidiary of the Borrower of Indebtedness of Holdings, the Borrower or any other Subsidiary, Subsidiary of the Borrower; provided that such Guarantees are (A) the Indebtedness so guaranteed is permitted by this Section and (B) Guarantees by the Borrower or any Subsidiary Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 6.04;
(v) Indebtedness of the Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vi) Indebtedness of the Borrower or any Restricted Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assetsassets after the Effective Date, including Capital Lease Obligations (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof or result in an earlier maturity date or decreased weighted average life thereof; provided that (A) such Indebtedness is incurred prior to or within 270 days after such acquisition or the completion of such construction or improvement and (B) the aggregate principal amount of Indebtedness permitted by this clause (v) (and that is not listed in Schedule 6.01) shall not exceed $75,000,000 at any time outstanding;
(vi) Indebtedness of (A) any Person that becomes a Subsidiary after the Effective Date pursuant to a Permitted Acquisition to the extent that such Indebtedness exists at the time such Person becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary, (B) the Borrower or a Subsidiary to the extent that such Indebtedness is assumed in connection with a Permitted Acquisition made by the Borrower or such Subsidiary and is not created in contemplation of such Permitted Acquisition and (C) the Borrower in respect of unsecured promissory notes issued as consideration for Permitted Acquisitions; provided that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall be subject to the limitations set forth in clause (h) of Section 6.04;
(vii) other unsecured Indebtedness of the Borrower or any Subsidiary Loan Party in an aggregate principal amount not exceed exceeding $25,000,000 20,000,000 at any time outstanding;
(viiviii) Receivables Indebtedness of the China JV in an aggregate principal amount not to exceed exceeding $20,000,000 45,000,000 at any time outstanding; provided that such Indebtedness is (A) secured only by assets of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
(viii) unsecured reimbursement obligations (contingent or otherwise) in respect of letters of credit issued to support obligations of the Borrower or any Restricted Subsidiary incurred in the ordinary course of business; provided that (A) the aggregate amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not at any time exceed $5,000,000 and (B) any disbursement in respect of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement is made; and
(ix) other Funded Indebtedness ifDVA Obligations in an aggregate amount at any time outstanding not exceeding (A) $100,000,000 at any time on or prior to June 30, on the date of the creation, issuance, incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral)2005, (xB) the Leverage Ratio is less than 4.00 to 1.00 $150,000,000 at any time thereafter until and including June 30, 2006, and (yC) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such date$200,000,000 at any time thereafter.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness existing on the Effective Date and set forth in Schedule 6.01, but not any extensions, renewals or replacements of any such Indebtedness, and (ii) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, issue any preferred stock or other preferred Equity Interests or be or become liable in respect of any obligation (including contingent or otherwise) to purchase, redeem, retire, acquire or make any Disqualified Stock), except that (i) Holdings may issue preferred stock or other preferred payment in respect of any Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any option, warrant or other right to acquire any such Equity Interests; provided that the foregoing shall not be construed to prohibit Restricted Subsidiary.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise Payments permitted by this Agreement and is pledged as CollateralSection 6.07(a).
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any IndebtednessIndebtedness or any Attributable Debt, except:
(i) Term Loans, other than Indebtedness created under the Loan Documents and any Incremental Term Loans, and Letters Permitted Subordinated Indebtedness of Creditthe Borrower or its Subsidiaries to the extent the Net Proceeds thereof are used to refinance Indebtedness created under the Loan Documents;
(ii) Indebtedness existing on the Restatement Effective Closing Date and set forth in Schedule 6.01 and extensions, renewals, refinancings and replacements of any such Refinancing Indebtedness that do not increase the outstanding principal amount thereof (other than by the amount of any fees or expenses incurred in the refinancing thereof) or result in an earlier maturity date or decreased weighted average life respect thereof;
(iii) Indebtedness of the Borrower to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings Borrower or any other Restricted Subsidiary; provided, in each case subject that no Subsidiary that is not a Loan Party shall have any Indebtedness to Section 6.04the Borrower or any Subsidiary Loan Party;
(iv) Guarantees by the Borrower of Indebtedness of any Subsidiary Loan Party and by any Restricted Subsidiary of Indebtedness of Holdings, the Borrower or any other Subsidiary, provided that such Guarantees are permitted by Section 6.04Subsidiary Loan Party;
(v) Indebtedness and Attributable Debt of the Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vi) 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 (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than by an amount not greater than fees and expenses, including premium and defeasance costs, associated therewith) or result in a decreased average weighted life thereof; provided that (1) such Indebtedness or Attributable Debt is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement and (2) the aggregate principal amount of Indebtedness and Attributable Debt permitted by this clause (v), together with the aggregate principal amount of Indebtedness and Attributable Debt of the Service Company described in Section 6.18(d)(i) allocated to the Borrower and its Subsidiaries pursuant to the Shared Services Agreement, shall not exceed $20,000,000 at any time outstanding;
(vi) Indebtedness of any Person that becomes a Subsidiary after the Closing Date and Refinancing Indebtedness in respect thereof; provided that (A) such Indebtedness (other than Refinancing Indebtedness) exists at the time such Person becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary (except to the extent such Indebtedness refinanced other Indebtedness to facilitate such entity becoming a Subsidiary) and (B) the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $25,000,000 10,000,000 at any time outstanding;
(vii) [Intentionally Omitted];
(viii) Indebtedness of the China JV Borrower or any Subsidiary in respect of letters of credit in an aggregate face amount not exceeding $5,000,000 at any time outstanding;
(ix) unsecured Indebtedness and Attributable Debt owing to the Service Company incurred pursuant to the Shared Services Transactions; and
(x) other unsecured Indebtedness in an aggregate principal amount not to exceed exceeding $20,000,000 at any time outstanding; provided that such Indebtedness is (A) secured only by assets of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
(viii) unsecured reimbursement obligations (contingent or otherwise) in respect of letters of credit issued to support obligations of the Borrower or any Restricted Subsidiary incurred in the ordinary course of business; provided that (A) the aggregate amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not at any time exceed $5,000,000 and (B) any disbursement in respect of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement is made; and
(ix) other Funded Indebtedness if, on the date of the creation, issuance, incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such date.
(b) Holdings The Borrower will not, and will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock), except that (i) Holdings may issue preferred stock or other preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted SubsidiaryInterests.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.
Appears in 1 contract
Samples: Credit Agreement (DEX ONE Corp)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and Neither Holdings and nor the Borrower will, nor will not they permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term Loans, other than any Incremental Term Loans, and Letters of CreditIndebtedness created under the Loan Documents;
(ii) in the case of the Borrower, the Senior Subordinated Notes in an aggregate principal amount not to exceed (x) $200,000,000 less (y) the aggregate principal amount of Senior Subordinated Notes redeemed, repurchased or retired pursuant to Section 6.08 (and extensions, renewals and replacements of any such Senior Subordinated Notes that do not increase the outstanding principal amount thereof or result in an earlier maturity date or decreased weighted average life thereof and that do not have terms less favorable to the Lenders and the Borrower than the Senior Subordinated Notes);
(iii) Indebtedness existing on the Restatement Effective Original Closing Date (other than the Senior Subordinated Notes) and set forth in Schedule 6.01 and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than by the amount of any fees or expenses incurred in the refinancing thereof) or result in an earlier maturity date or decreased weighted average life thereof;
(iiiiv) Indebtedness of the Borrower to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings or any other Restricted Subsidiary, in each case subject to Section 6.04;
(iv) Guarantees by the Borrower and by any Restricted Subsidiary of Indebtedness of Holdings, the Borrower or any other Subsidiary, provided that such Guarantees are permitted by Section 6.04;
(v) Indebtedness of the Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vi) 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 (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof; provided that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $25,000,000 at any time outstanding;
(vii) Indebtedness of the China JV in an aggregate principal amount not to exceed $20,000,000 at any time outstanding; provided that such Indebtedness is (A) secured only by assets of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
(viii) unsecured reimbursement obligations (contingent or otherwise) in respect of letters of credit issued to support obligations of the Borrower or any Restricted Subsidiary incurred in the ordinary course of business; provided that (A) Indebtedness of any Subsidiary that is not a Loan Party to the aggregate amount of all such letters of credit and unreimbursed disbursements in respect thereof Borrower or any Subsidiary Loan Party shall not at any time exceed $5,000,000 be subject to Section 6.04 and (B) any disbursement in respect of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement is made; and
(ix) other Funded Indebtedness if, on the date of the creation, issuance, incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such date.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower to any Subsidiary and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock), except that (i) Holdings may issue preferred stock or other preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted Subsidiary.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP any Subsidiary owed Loan Party to the Borrower or any Subsidiary that is not a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.shall be subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent;
Appears in 1 contract
Samples: Amendment and Restatement Agreement (Interline Brands, Inc./De)
Indebtedness; Certain Equity Securities. (a) The Borrower Credit Parties will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, directly or indirectly, create, incur, assume or permit to exist (including by way of Guarantee Obligations) any Indebtedness, except:
(i) Term Loans, other than any Incremental Term Loans, Indebtedness incurred and Letters of Creditoutstanding under the Loan Documents;
(ii) Indebtedness existing on of the Restatement Effective Date Euro Borrower under the First Lien Notes in an aggregate principal amount not to exceed €460,000,000 and set forth Guarantee Obligations in Schedule 6.01 and extensions, renewals, refinancings and replacements respect of any such Indebtedness that do not increase the outstanding principal amount thereof (other than by the amount of any fees or expenses incurred in the refinancing thereof) or result in an earlier maturity date or decreased weighted average life thereofeach Subsidiary Credit Party and Parent Guarantor;
(iii) Indebtedness of U.S. Borrower under the Senior Notes in an aggregate principal amount not to exceed $1,100,000,000 and Guarantee Obligations in respect of such Indebtedness by each Parent Guarantor that is a parent company (directly or indirectly) of U.S. Borrower to Holdings or and each U.S. Subsidiary (other than any Restricted Receivables Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings or any other Restricted Insurance Subsidiary, in each case subject to Section 6.04);
(iv) Guarantees by Indebtedness under the Borrower and by Existing Unsecured Debt, including any Restricted Subsidiary Guarantee Obligations in respect thereof existing on the Effective Date or required to be incurred after the Effective Date pursuant to the terms of Indebtedness of Holdings, the Borrower or any other Subsidiary, provided that documents governing such Guarantees are permitted by Section 6.04Indebtedness;
(v) Permitted Public Debt that refinances Indebtedness permitted pursuant to clauses (i), (ii), (iii), (iv) or (xv) of this Section 8.1(a) (and refinancings of such Permitted Public Debt with Permitted Public Debt); provided, that (1) such Permitted Public Debt does not increase the outstanding principal amount of such Indebtedness being refinanced (except to pay accrued and unpaid interest and fees, including call, tender or other premiums, and reasonable fees and expenses in connection with such refinancing), (2) if the Indebtedness being refinanced is Subordinated Indebtedness, such Permitted Public Debt constitutes Subordinated Indebtedness, (3) the Standard Financing Conditions are met, (4) if such Permitted Public Debt refinances any CCSC 2026 Debentures or CCSC 2096 Debentures and if the Indebtedness under this Agreement is rated Ba2 or lower by Xxxxx’x and BB- or lower by S&P, Crown Holdings shall provide written confirmation from each of Xxxxx’x and S&P that the rating of such Indebtedness will not be downgraded by either Xxxxx’x or S&P as a result of the incurrence of such Permitted Public Debt and (5) in case of any Indebtedness incurred by or guaranteed by European Borrower or any Restricted Subsidiary of its Subsidiaries or under which European Borrower or any of its Subsidiaries is an obligor, the holders of such Indebtedness or any trustee or agent on their behalf shall be bound by and shall execute and deliver counterparts to the Sharing Agreement; and Guarantee Obligations in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal such Indebtedness by each Parent Guarantor that is a parent company (directly or similar bonds and completion or other financial guarantees provided by the indirectly) of U.S. Borrower and each U.S. Subsidiary (other than any Receivables Subsidiary and the Restricted Subsidiaries Insurance Subsidiary), or, in the ordinary course case of their businessany Permitted Public Debt that refinances Indebtedness, provided that upon the incurrence described in clause (ii) of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claimsthis Section 8.1(a), such obligations are reimbursed within 30 days following such drawing or incurrenceby each Subsidiary Credit Party and Parent Guarantor;
(vi) Indebtedness outstanding or committed on the Effective Date and listed on Schedule 6.5(c)(i) or (ii), in each case up to the amounts set forth on such Schedule and any extensions, renewals, refinancings, refundings and replacements thereof incurred by the same obligors thereunder and on substantially similar terms (or terms that are more favorable to the respective borrower) that do not increase the amount outstanding or committed thereunder as of the Effective Date or result in a decreased Weighted Average Life to Maturity thereof; provided that the Standard Financing Conditions are met;
(vii) Indebtedness (including Indebtedness outstanding and available as of the Effective Date) under one or more Permitted Receivables or Factoring Financings; provided that with respect to any such Indebtedness incurred under clause (iii) of the definition of Permitted Receivables or Factoring Financings, the Standard Financing Conditions are met; provided, further, that in the case of revolving Permitted Receivables or Factoring Financings, compliance with the Standard Financing Conditions above shall be required solely as of the date that the commitments for such revolving Permitted Receivables or Factoring Financings become effective or are increased and shall be calculated as if the maximum amount of such commitments were fully funded on such date;
(viii) Indebtedness of the Italian Subsidiaries incurred after the Effective Date in an aggregate principal amount outstanding at any time not to exceed €50,000,000; provided that the Standard Financing Conditions are met;
(ix) Indebtedness of Subsidiaries that are not Credit Parties incurred after the Effective Date in an aggregate principal amount outstanding at any time not to exceed $250,000,000; provided that the Standard Financing Conditions are met;
(a) Indebtedness of any Credit Party to any other Credit Party; provided that any Indebtedness owed by a Subsidiary Credit Party of U.S. Borrower or U.S. Borrower to a Subsidiary Credit Party of European Borrower or European Borrower shall be subordinated to the U.S. Obligations in a manner acceptable to Administrative Agent; and (b) Indebtedness of any Subsidiary that is not a Credit Party owed to another Subsidiary that is not a Credit Party;
(xi) subject to Section 8.4(d), Indebtedness of any Non-U.S. Subsidiary that is not a Subsidiary Credit Party owed to any Borrower or any Restricted Subsidiary Credit Party, provided that no Unmatured Event of Default or Event of Default has occurred and is continuing at the time of the incurrence of such Indebtedness or would result therefrom;
(xii) the incurrence by Crown Holdings or any of its Subsidiaries of Hedging Agreements that are incurred in the ordinary course of business and not for speculative purposes; provided that, in any such case, the liabilities under such Hedging Agreements which do not represent an actual obligation and for which an offsetting derivative contract has been recorded in the financial statements are recorded in accordance with SFAS 133;
(xiii) Indebtedness (and Guarantee Obligations incurred in respect thereof) of U.S. Borrower or European Borrower or any of their Subsidiaries incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof or result in an earlier maturity date or decreased Weighted Average Life to Maturity thereof; provided that (a) such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, (b) the Standard Financing Conditions are met, and (c) the aggregate principal amount of Indebtedness permitted by incurred and outstanding under this clause (vixiii), together with Indebtedness incurred and outstanding under clauses (xiv) shall and (xvi) of this Section 8.1(a), does not exceed $25,000,000 at any time outstandingthe Debt Basket Amount;
(viixiv) Indebtedness of any Subsidiary of U.S. Borrower or European Borrower issued and outstanding on or prior to the China JV date on which such Person becomes a Subsidiary in an connection with a Permitted Acquisition so long as (a) such Indebtedness was not issued or created in contemplation of such acquisition, (b) the Standard Financing Conditions are met, and (c) the aggregate principal amount of Indebtedness incurred and outstanding under this clause (xiv), together with Indebtedness incurred and outstanding under clauses (xiii) and (xvi) of this Section 8.1(a), does not exceed the Debt Basket Amount;
(xv) Permitted Public Debt the net proceeds of which are used solely to exceed finance a Permitted Acquisition (and to pay fees and expenses related thereto) and Guarantee Obligations in respect thereof by the U.S. Credit Parties and each Parent Guarantor that is a parent company (directly or indirectly) of U.S. Borrower; provided, that (a) the Standard Financing Conditions are met and (b) Total Available Revolving Commitments at the time of incurrence and after giving effect to the use of the proceeds thereof and the incurrence of any Revolving Loans necessary to consummate such Permitted Acquisition exceeds $20,000,000 at any time outstanding200,000,000;
(xvi) Attributable Debt in respect of sale and leaseback transactions permitted by Section 8.6; provided that such Indebtedness is (Aa) secured only by assets of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary Standard Financing Conditions are met; and (Bb) the aggregate principal amount of Indebtedness incurred under this clause (xvi), together with Indebtedness incurred and outstanding under clauses (xiii) and (xiv) of Section 8.1(a) does not Guaranteed by Holdings, exceed the Borrower or any other Restricted SubsidiaryDebt Basket Amount;
(viiixvii) unsecured reimbursement Indebtedness owed to (including obligations (contingent or otherwise) in respect of letters of credit issued for the benefit of) any Person providing worker’s compensation, health, disability or other employee benefits or property, casualty or liability insurance to support obligations of the Borrower Crown Holdings or any Restricted of its Subsidiaries, pursuant to reimbursement or indemnification obligations to such Person;
(xviii) Indebtedness of Crown Holdings or its Subsidiaries in respect of performance bonds, bid bonds, appeal bonds, surety bonds and similar obligations and trade-related letters of credit, in each case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(xix) Indebtedness arising from agreements of Crown Holdings or any of its Subsidiaries providing for indemnification, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with a Permitted Acquisition or the disposition of any business, assets or a Subsidiary, other than, in the case of a disposition, Guarantee Obligations with respect to Indebtedness incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary incurred for the purpose of financing such acquisition;
(xx) obligations in respect of performance and surety bonds and completion guarantees provided by Crown Holdings and its Subsidiaries in the ordinary course of business;
(xxi) Indebtedness of Crown Holdings or any of its Subsidiaries 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 five Business Days of incurrence;
(xxii) Indebtedness of the Thai Subsidiaries incurred after the Effective Date in an aggregate principal amount outstanding at any time not to exceed $50,000,000; provided that the Standard Financing Conditions are met;
(xxiii) Indebtedness of any Euro Credit Party to any other Non-U.S. Subsidiary that is not a Credit Party incurred in the ordinary course of business consistent with past practice; provided that (Ax) the aggregate amount if any such Indebtedness in excess of all such letters of credit and unreimbursed disbursements in respect thereof shall not $50,000,000 is outstanding at any time exceed $5,000,000 time, Indebtedness representing such excess shall be subordinated to the Euro Obligations to at least the same extent as Intercompany Loans are subordinated to the Euro Obligations under the Euro Intercreditor Agreement and (By) no Unmatured Event of Default or Event of Default has occurred and is continuing at the time of the incurrence of such Indebtedness or would result therefrom;
(xxiv) Indebtedness of Subsidiaries that are not Credit Parties to Credit Parties issued solely as consideration for asset sales permitted by Section 8.5(k);
(xxv) Guarantee Obligations of Crown Holdings or any disbursement of its Subsidiaries in respect of any such letter Indebtedness permitted to be incurred pursuant to clauses (i), (xii), (xvi), (xvii), (xviii), (xix), (xx), (xxi), (xxii) or (xxvi) of credit shall be reimbursed in full within three Business Days after such disbursement is madethis Section 8.1(a); and
(ixxxvi) other Funded Indebtedness if, on of Crown Holdings or any of its Subsidiaries in an aggregate principal amount not exceeding $200,000,000 at any time outstanding. The maximum amount of Indebtedness that Crown Holdings or any Subsidiary may incur pursuant to this Section 8.1 shall not be deemed to be exceeded solely as the date result of the creation, issuance, incurrence or assumption of such Indebtedness (or, fluctuations in the case exchange rates of Funded currencies. In addition, the maximum amount of Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred Crown Holdings or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered any Subsidiary may incur pursuant to Section 5.01(a8.1(a)(xiii) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicablexiv) and all (xvi) shall not be deemed exceeded solely as a result of the Leverage Condition no longer being satisfied after the incurrence of Indebtedness under such clauses (it being understood that the Debt Basket Amount shall be reduced to be prepaid with the proceeds 7.5% for purposes of such Funded incurrences of Indebtedness on or within 10 days after such datethereafter).
(b) Holdings The Credit Parties will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower willnot, nor will they permit any Restricted Subsidiary of their Subsidiaries to, directly or indirectly, issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock), except that (i) Holdings may issue preferred stock or other preferred Equity Interests of Holdings that are not Disqualified Capital Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted SubsidiaryPermitted Preferred Stock.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and Holdings and the Borrower will not permit any Restricted Cargill Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term Loans, other than any Incremental Term Loans, and Letters of CreditIndebtedness created under the Loan Documents;
(ii) Indebtedness existing on the Restatement Effective Date date hereof (including Indebtedness to reduce any working capital adjustment as contemplated by Section 9.22 of the Merger Agreement) and set forth in Schedule 6.01 and extensions, renewals, replacements and refinancings and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than except by the amount of any fees premium or expenses incurred fee payable in the refinancing thereofconnection with such extension, renewal or replacement) or result in an earlier maturity date or decreased weighted average life thereof;
(iii) Indebtedness of the Borrower to Holdings or any Restricted Cargill Subsidiary and of any Restricted Cargill Subsidiary to the Borrower, Holdings Borrower or any other Restricted Cargill Subsidiary, in each case ; provided that Indebtedness of any Cargill Subsidiary that is not a Loan Party owing to any Loan Party shall be subject to Section 6.04;
(iv) Guarantees by the Borrower of Indebtedness of any Cargill Subsidiary and by any Restricted Cargill Subsidiary of Indebtedness of Holdings, the Borrower or any other Cargill Subsidiary, ; provided that such Guarantees are permitted by any Loan Party of Indebtedness of any Cargill Subsidiary that is not a Loan Party shall be subject to Section 6.04;
(v) Indebtedness of the Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vi) Indebtedness of the Borrower or any Restricted Cargill Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof or result in an earlier maturity date or decreased weighted average life thereof; provided that (A) such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement and (B) the aggregate principal amount of Indebtedness permitted by this clause (viv) shall not exceed $25,000,000 7,000,000 at any time outstanding;
(viivi) Indebtedness of the China JV Borrower or any of the Cargill Subsidiaries arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in an aggregate principal amount not to exceed $20,000,000 at any time outstandingthe case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided that such Indebtedness is repaid within two Business Days after being incurred;
(Avii) secured only by assets unsecured Indebtedness of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
(viii) unsecured reimbursement obligations (contingent or otherwise) of the Cargill Subsidiaries as an account party in respect of letters of credit issued to support obligations for the account of the Borrower or any Restricted Subsidiary incurred such Cargill Subsidiary, as the case may be, that either constitute trade letters of credit or are obtained in order to provide security for workers’ compensation claims, payment obligations in connection with self-insurance or similar requirements in the ordinary course of business; provided that (A) such Indebtedness is not Guaranteed by any of the aggregate amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not at any time exceed $5,000,000 Borrower or the Cargill Subsidiaries and (B) any disbursement in respect of Indebtedness resulting from a drawing under any such letter of credit shall be reimbursed in full is repaid within three two Business Days after such disbursement is madedrawing;
(viii) obligations of the Borrower or any of the Cargill Subsidiaries in respect of performance bonds and completion, guarantee, surety and similar bonds, in each case obtained in the ordinary course of business to support statutory and contractual obligations (other than Indebtedness) arising in the ordinary course of business;
(ix) Indebtedness of Cargill Subsidiaries that are Foreign Subsidiaries in an aggregate principal amount not exceeding $75,000,000 at any time outstanding; and
(ixx) other Funded Indebtedness if, on the date of the creation, issuance, incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such datean aggregate principal amount not exceeding $15,000,000 at any time outstanding.
(b) Holdings The Borrower will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower willnot, nor will they it permit any Restricted Cargill Subsidiary to, issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock)Interests, except that (i) Holdings the Borrower may issue preferred stock that does not constitute a Disqualified Equity Interest. Notwithstanding the foregoing, any Cargill Subsidiary shall be permitted to issue any preferred stock or other preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied Interest directly to Holdings and (ii) Holdings, the Borrower or any Restricted Subsidiary Loan Party, provided that any such preferred stock or other preferred Equity Interest may issue directors’ qualifying shares not be sold, transferred or shares required otherwise disposed of by applicable law to be held by a Person other than Holdings, the Borrower or such Subsidiary Loan Party to any Restricted Subsidiary.
Person (d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as CollateralParty) unless (i) after such sale, transfer or other disposition, such Subsidiary shall no longer be a Subsidiary or (ii) the Borrower has received the consent of the Required Lenders prior to any such transfer.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Holdings and the Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term Loans, other than any Incremental Term Loans, and Letters of CreditIndebtedness created under the Loan Documents;
(ii) the Senior Subordinated Notes in an aggregate principal amount not to exceed $200,000,000 and the Holdings Discount Debentures in an aggregate principal amount at maturity not to exceed $49,000,000;
(iii) Indebtedness existing on the Restatement Effective Date date hereof and set forth in Schedule 6.01 and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than by the amount of any fees or expenses incurred in the refinancing thereof) or result in an earlier maturity date or decreased weighted average life thereof;
(iiiiv) Indebtedness of the Borrower to Holdings or any Restricted Wholly-Owned Subsidiary and of any Restricted Wholly-Owned Subsidiary (other than a License Subsidiary) to the Borrower, Holdings Borrower or any other Restricted Wholly-Owned Subsidiary, in each case provided that Indebtedness of any Wholly-Owned Subsidiary that is not a Loan Party to the Borrower or any Wholly-Owned Subsidiary Loan Party shall be subject to Section 6.04;
(ivv) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Restricted Subsidiary of Indebtedness of Holdings, the Borrower or any other Subsidiary, provided that such Guarantees are permitted by Section 6.04;
(v) Indebtedness of the Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence Loan Party of Indebtedness with respect of any Subsidiary that is not a Loan Party shall be subject to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrenceSection 6.04;
(vi) Indebtedness of the Borrower or any Restricted Subsidiary (other than a License Subsidiary) incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, provided that such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof; thereof provided that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $25,000,000 20,000,000 at any time outstanding;
(vii) Indebtedness of any Person that becomes a Subsidiary after the China JV date hereof, provided that (A) such Indebtedness exists at the time such Person becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary and (B) the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $10,000,000 at any time outstanding;
(viii) other unsecured Indebtedness of the Borrower or any Subsidiary (other than a License Subsidiary) in an aggregate principal amount not to exceed exceeding $20,000,000 5,000,000 at any time outstanding;
(ix) Indebtedness in respect of Hedging Agreements permitted by Section 6.07; provided that such and
(x) Indebtedness is (A) secured only incurred by assets of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
(viii) unsecured of the Subsidiaries constituting reimbursement obligations (contingent or otherwise) in with respect of to letters of credit issued to support obligations of the Borrower or any Restricted Subsidiary incurred in the ordinary course of business; provided that (A) the aggregate amount of all such , including letters of 105 credit and unreimbursed disbursements in respect thereof shall not at any time exceed $5,000,000 and (B) any disbursement in respect of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement is made; and
(ix) other Funded Indebtedness if, on the date of the creation, issuance, incurrence workers' compensation claims or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such dateself-insurance.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) the Holdings Discount Debentures, (ii) the Guarantees of the Senior Subordinated Notes and (iii) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock), except that (i) Holdings may issue preferred stock or other preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted SubsidiaryInterests.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.
Appears in 1 contract
Samples: Credit Agreement (Alec Holdings Inc)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, directly or indirectly, create, incur, assume or permit to exist (including by way of Guarantee) any Indebtedness, except:
(i) Term Loans, other than any Incremental Term Loans, Indebtedness incurred and Letters of Creditoutstanding under the Loan Documents;
(ii) Indebtedness of the Borrower under the Constar Notes and the Constar Notes Indenture in a principal amount not to exceed $175 million;
(iii) Indebtedness existing on the Restatement Second Lien Effective Date and set forth in Schedule 6.01 and extensions, renewals, refinancings refinancings, refundings and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than by the amount of any fees or expenses incurred in the refinancing thereof) or result in an earlier maturity date or decreased weighted average life thereofthereof and that are otherwise on terms and conditions pursuant to documentation satisfactory to the Administrative Agent;
(iiiiv) (x) Indebtedness of the Borrower to Holdings or any Restricted Subsidiary Loan Party and of any Restricted Subsidiary Loan Party to the Borrower, Holdings Borrower or any other Restricted Subsidiary Loan Party, or (y) Indebtedness of any Non-U.S. Subsidiary owed to another Non-U.S. Subsidiary, in each case subject to Section 6.04;
(ivv) Guarantees by the Borrower of Indebtedness of any Subsidiary Loan Party and by any Restricted Subsidiary Loan Party of Indebtedness of Holdings, the Borrower or any other Subsidiary, provided that such Guarantees are permitted by Section 6.04;
(v) Indebtedness of the Borrower or any Restricted other Subsidiary Loan Party, in respect of workers’ compensation claimseach case, self-insurance obligationsto the extent such Indebtedness was permitted to be incurred hereunder, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by if such Indebtedness is subordinated to the Borrower and Obligations under the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claimsLoan Documents, such obligations are reimbursed within 30 days following such drawing or incurrenceGuarantee is as subordinated in right of payment to the Obligations;
(vi) Indebtedness of arising from the Borrower or any Restricted Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured honoring by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings and replacements bank or other financial institution of any such Indebtedness that do not increase the outstanding principal amount thereof; provided that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $25,000,000 at any time outstanding;
(vii) Indebtedness of the China JV in an aggregate principal amount not to exceed $20,000,000 at any time outstanding; provided that such Indebtedness is (A) secured only by assets of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower a check draft or any other Restricted Subsidiary;
(viii) unsecured reimbursement obligations (contingent or otherwise) in respect of letters of credit issued to support obligations of the Borrower or any Restricted Subsidiary incurred similar instrument drawn against insufficient funds in the ordinary course of business; provided that such Indebtedness is extinguished within two Business Days of its incurrence;
(Avii) Indebtedness of the Borrower constituting Permitted Subordinated Indebtedness; provided that (x) no Default or Event of Default shall have occurred or be continuing or would result therefrom and (y) after giving effect to the incurrence of such Indebtedness (and any other Indebtedness incurred since the last day of the immediately preceding Test Period) on a pro forma basis as if it was incurred on the first day of the immediately preceding Test Period (but tested as if the applicable ratio were the ratio for the next succeeding Test Period), the Borrower would be in compliance with Sections 6.14 through 6.17, inclusive;
(viii) Indebtedness of Non-U.S. Subsidiaries in an aggregate principal amount outstanding at any time not in excess of $5.0 million (other than in respect of Indebtedness outstanding pursuant to this clause (viii) on the date hereof); provided that (x) no Default or Event of Default shall have occurred or be continuing or would result therefrom, (y) after giving effect to the incurrence of such Indebtedness (and any other Indebtedness incurred since the last day of the immediately preceding Test Period) on a pro forma basis as if it was incurred on the first day of the immediately preceding Test Period (but tested as if the applicable ratio were the ratio for the next succeeding Test Period), the Borrower would be in compliance with Sections 6.14 through 6.17, inclusive, and (z) the tenor of Indebtedness incurred under this clause (viii) (other than in respect of Indebtedness outstanding pursuant to this clause (viii) on the Effective Date) shall not be greater than 60 days;
(ix) Indebtedness of any Non-U.S. Subsidiary to the Borrower or any Subsidiary Loan Party in an aggregate principal amount outstanding at any time not in excess of all $20.0 million; provided that any such Indebtedness shall be evidenced by a promissory note which shall be in form and substance satisfactory to the Administrative Agent and which shall be pledged pursuant to the Pledge Agreement (so long as such pledge would not result in adverse tax consequences to the Borrower or the applicable Subsidiary);
(x) [Intentionally Omitted];
(xi) Hedging Agreements to the extent required by Section 5.15 and other Hedging Agreements entered into in the ordinary course of business and not for speculative purposes;
(xii) Indebtedness owed to (including obligations in respect of letters of credit and unreimbursed disbursements in respect thereof shall not at any time exceed $5,000,000 and (Bfor the benefit of) any disbursement Person providing worker’s compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary of the Borrower, pursuant to reimbursement or indemnification obligations to such person;
(xiii) Indebtedness of the Borrower or its Subsidiaries in respect of performance bonds, bid bonds, appeal bonds, surety bonds and similar obligations and trade-related letters of credit, in each case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(xiv) Indebtedness arising from agreements of the Borrower or a Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the disposition of any business, assets or a Subsidiary, other than Guarantees of Indebtedness incurred by any Person acquiring all or any portion of such letter business, assets or a Subsidiary for the purpose of credit shall be reimbursed financing such acquisition;
(xv) obligations in full within three Business Days after such disbursement is maderespect of performance and surety bonds and completion guarantees provided by the Borrower and its Subsidiaries in the ordinary course of business; and
(ixxvi) other Funded Indebtedness if, on the date of the creation, issuance, incurrence or assumption of such Indebtedness (or, Borrower in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such datean aggregate principal amount not exceeding $1.0 million at any time outstanding.
(b) Holdings The Borrower will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower willnot, nor will they it permit any Restricted Subsidiary to, directly or indirectly, issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock), except that Interest which (i) Holdings matures or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise prior to one year after the Term C Loan Maturity Date, (ii) is or may issue become redeemable or repurchaseable at the option of the holder thereof, in whole or in part, prior to one year after the Term C Loan Maturity Date or (iii) is convertible or exchangeable at the option of the holder thereof for Indebtedness or preferred stock or any other preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of Interest described in this Section 6.01 as if such clause applied paragraph prior to Holdings and (ii) Holdings, one year after the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted SubsidiaryTerm C Loan Maturity Date.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, create, issue, incur, assume or permit to exist any Indebtedness, any Attributable Debt in respect of any Sale and Leaseback Transaction, any Third Party Interests or any Disqualified Preferred Stock except:
(i) Term Loans(A) Indebtedness under the Senior Loan Documents (including Indebtedness incurred pursuant to any Refinancing Amendment executed in accordance with Section 6.01(c)) and, other than any in each case, Refinancing Indebtedness in respect thereof (including (x) Refinancing Indebtedness in respect of Revolving Commitments or Other Revolving Commitments and (y) Refinancing Indebtedness consisting of Permitted First Priority Debt) and (B) Existing Additional Senior Debt, Permitted First Priority Debt and Refinancing Indebtedness in respect thereof (including Indebtedness under an Incremental Term Loans, and Letters of CreditSenior Debt Refinancing Facility incurred pursuant to an Incremental Facility Amendment entered into pursuant to Section 2.21);
(ii) unsecured Indebtedness existing on of the Restatement Effective Date Borrower that is not Guaranteed by any Subsidiary, that does not mature or require scheduled payments of principal prior to the date that is 90 days after the Latest Maturity Date, and set forth that has covenants and events of default which are determined in Schedule 6.01 and extensions, renewals, refinancings and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than good faith by the amount senior management of any fees or expenses incurred the Borrower to be on market terms, and Refinancing Indebtedness issued in the refinancing thereof) or result in an earlier maturity date or decreased weighted average life thereofrespect of such Indebtedness;
(iii) Indebtedness of the Borrower to Holdings or any Restricted Subsidiary and the Subsidiaries in respect of any Restricted Subsidiary intercompany Investments permitted under Section 6.04; provided that such Indebtedness is subordinated to the Borrower, Holdings or any other Restricted Subsidiary, in each case subject Senior Loan Obligations pursuant to Section 6.04terms substantially the same as those forth on Annex 2 hereto;
(iv) Guarantees by the Borrower and by any Restricted Subsidiary of Indebtedness of Holdings, the Borrower or any other Subsidiary, provided that such Guarantees are permitted by Section 6.04Existing Non-Guaranteed Indebtedness;
(v) Indebtedness of the Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrenceExisting Second Priority Debt;
(vi) Indebtedness of Existing Guaranteed Unsecured Indebtedness;
(vii) Permitted Second Priority Debt and Permitted Split-Priority Term Loan Debt incurred after the Borrower or any Restricted Subsidiary incurred to finance the acquisition2013 Restatement Effective Date in an aggregate principal amount, construction or improvement of any fixed or capital assets, including Capital Lease Obligations (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection together with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings and replacements of any such Indebtedness that do not increase the outstanding aggregate principal amount thereofof Indebtedness incurred pursuant to clause (viii) of this Section 6.01(a), not in excess of $1,500,000,000 at any time outstanding; provided that the aggregate principal amount of Indebtedness permitted by Permitted Second Priority Debt and Permitted Split-Priority Term Loan Debt incurred under this clause which matures or requires scheduled payments of principal prior to the date that is 90 days after the Latest Maturity Date in effect at the time such Indebtedness is incurred or issued, together with the aggregate principal amount of any (vix) Permitted Unsecured Indebtedness which matures or requires scheduled payments of principal prior to the date that is 90 days after the Latest Maturity Date in effect at the time such Indebtedness is incurred and (y) Disqualified Preferred Stock which is subject to potential mandatory redemption or repurchase prior to the date that is 90 days after the Latest Maturity Date in effect at the time such Disqualified Preferred Stock is issued, in each case incurred or issued under clause (viii) of this Section 6.01(a), shall not exceed $25,000,000 750,000,000 at any time outstanding;
(vii) Indebtedness of the China JV in an aggregate principal amount not to exceed $20,000,000 at any time outstanding; provided that such Indebtedness is (A) secured only by assets of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
(viii) unsecured reimbursement obligations (contingent or otherwise) in respect of letters of credit issued to support obligations of the Borrower or any Restricted Subsidiary incurred in the ordinary course of business; provided that (A) the aggregate amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not at any time exceed $5,000,000 and (B) any disbursement in respect of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement is made; and
(ix) other Funded Indebtedness if, on the date of the creation, issuance, incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such date.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock), except that (i) Holdings may issue preferred stock or other preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted Subsidiary.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.
Appears in 1 contract
Samples: Credit Agreement (Rite Aid Corp)
Indebtedness; Certain Equity Securities. (a) The Holdings and the Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any IndebtednessIndebtedness or any Attributable Debt, except:
(i) Term Loans, other than Indebtedness created under the Loan Documents and any Incremental Term Loans, and Letters Permitted Subordinated Indebtedness of Creditthe Borrower or its Subsidiaries to the extent the Net Proceeds thereof are used to refinance Indebtedness created under the Loan Documents;
(ii) Indebtedness existing on the Restatement Effective Closing Date and set forth in Schedule 6.01 and extensions, renewals, refinancings and replacements of any such Refinancing Indebtedness that do not increase the outstanding principal amount thereof (other than by the amount of any fees or expenses incurred in the refinancing thereof) or result in an earlier maturity date or decreased weighted average life respect thereof;
(iii) Indebtedness of the Borrower to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings Borrower or any other Restricted Subsidiary; provided, in each case subject that no Subsidiary that is not a Loan Party shall have any Indebtedness to Section 6.04the Borrower or any Subsidiary Loan Party;
(iv) Guarantees by the Borrower of Indebtedness of any Subsidiary Loan Party and by any Restricted Subsidiary of Indebtedness of Holdings, the Borrower or any other Subsidiary, provided that such Guarantees are permitted by Section 6.04Subsidiary Loan Party;
(v) Indebtedness and Attributable Debt of the Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vi) 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 (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than by an amount not greater than fees and expenses, including premium and defeasance costs, associated therewith) or result in a decreased average weighted life thereof; provided that (1) such Indebtedness or Attributable Debt is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement and (2) the aggregate principal amount of Indebtedness and Attributable Debt permitted by this clause (v), together with the aggregate principal amount of Indebtedness and Attributable Debt of the Service Company described in Section 6.18(d)(i) allocated to the Borrower and its Subsidiaries pursuant to the Shared Services Agreement, shall not exceed $20,000,000 at any time outstanding;
(vi) Indebtedness of any Person that becomes a Subsidiary after the Closing Date and Refinancing Indebtedness in respect thereof; provided that (A) such Indebtedness (other than Refinancing Indebtedness) exists at the time such Person becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary (except to the extent such Indebtedness refinanced other Indebtedness to facilitate such entity becoming a Subsidiary) and (B) the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $25,000,000 10,000,000 at any time outstanding;
(vii) Indebtedness of the China JV Borrower in respect of loans made to the Borrower by Dex West, the proceeds of which shall be used by the Borrower to repay the Loans pursuant to Section 2.05, in an aggregate principal amount not exceeding (A) $15,000,000 with respect to exceed Indebtedness incurred during the fiscal year ending December 31, 2011, (B) $40,000,000 with respect to Indebtedness incurred during the fiscal year ending December 31, 2012, (C) $40,000,000 with respect to Indebtedness incurred during the fiscal year ending December 31, 2013 and (D) $40,000,000 with respect to Indebtedness incurred during the fiscal year ending December 31, 2014;
(viii) Indebtedness of the Borrower or any Subsidiary in respect of letters of credit in an aggregate face amount not exceeding $5,000,000 at any time outstanding;
(ix) unsecured Indebtedness and Attributable Debt owing to the Service Company incurred pursuant to the Shared Services Transactions; and
(x) other unsecured Indebtedness in an aggregate principal amount not exceeding $20,000,000 at any time outstanding; provided that such Indebtedness is (A) secured only by assets of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
(viii) unsecured reimbursement obligations (contingent or otherwise) in respect of letters of credit issued to support obligations of the Borrower or any Restricted Subsidiary incurred in the ordinary course of business; provided that (A) the aggregate amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not at any time exceed $5,000,000 and (B) any disbursement in respect of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement is made; and
(ix) other Funded Indebtedness if, on the date of the creation, issuance, incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such date.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock), except that (i) Holdings may issue preferred stock or other preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted SubsidiaryInterests.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.
Appears in 1 contract
Samples: Credit Agreement (DEX ONE Corp)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term Loans, other than any Incremental Term Loans, and Letters of CreditIndebtedness created under the Loan Documents;
(ii) [Intentionally Omitted];
(iii) the Junior Subordinated Note;
(iv) Indebtedness existing on the Restatement Effective Date and set forth in Schedule 6.01 and extensions, renewals, refinancings and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than by the amount of any fees or expenses incurred in the refinancing thereof) or result in an earlier maturity date or decreased weighted average life thereof;
(iiiv) Indebtedness of the Borrower to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings or any other Restricted Subsidiary, in each case subject to Section 6.04;
(ivvi) Guarantees by the Borrower and by any Restricted Subsidiary of Indebtedness of Holdings, the Borrower or any other Subsidiary, provided that such Guarantees are permitted by the Borrower or any Subsidiary Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 6.04;
(vvii) Indebtedness of the Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vi) 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 (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof; , provided that the aggregate principal amount of Indebtedness permitted by this clause (vivii) shall not exceed $25,000,000 at any time outstanding;
(viiviii) Indebtedness of the China JV in an aggregate principal amount not to exceed $20,000,000 at any time outstanding; provided that such Indebtedness is (A) secured only by assets of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
(viii) unsecured reimbursement obligations (contingent or otherwise) in respect of letters of credit issued to support obligations of the Borrower or any Restricted Subsidiary incurred in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion guarantees provided by the Borrower and the Subsidiaries in the ordinary course of their business; , provided that (A) upon the aggregate amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not at any time exceed $5,000,000 and (B) any disbursement in respect of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement is made; and
(ix) other Funded Indebtedness if, on the date of the creation, issuance, incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such date.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower willwith respect to reimbursement type obligations regarding workers’ compensation claims, nor will they permit any Restricted Subsidiary to, issue any preferred stock such obligations are reimbursed within 30 days following such drawing or other preferred Equity Interests (including any Disqualified Stock), except that (i) Holdings may issue preferred stock or other preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted Subsidiary.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.incurrence;
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary other Loan Party to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term Loans, other than any Incremental Term Loans, and Letters of Credit;
(ii) : Indebtedness existing on created under the Restatement Effective Date and set forth in Schedule 6.01 and extensions, renewals, refinancings and replacements of any such Revolving Credit Facility; Indebtedness that do not increase created under the outstanding principal amount thereof (other than by the amount of any fees or expenses incurred in the refinancing thereof) or result in an earlier maturity date or decreased weighted average life thereof;
(iii) Loan Documents; Indebtedness of the Borrower owing to Holdings any of its Subsidiaries and Indebtedness of any of the Borrower's Subsidiaries owing to the Borrower or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings or any its other Restricted Subsidiary, in each case subject to Section 6.04;
(iv) Subsidiaries; Guarantees by the Borrower and by any Restricted Subsidiary of Indebtedness of Holdings, the Borrower or any other Subsidiary, provided that such Guarantees are permitted by Section 6.04;
(v) of Borrower's Subsidiaries of Indebtedness of the Borrower or any Restricted Subsidiary in respect of workers’ compensation claimsits other Subsidiaries to the extent such Indebtedness is otherwise permitted hereunder; provided, self-insurance obligationshowever, performance bonds, surety, appeal or similar bonds and completion or other financial that no such guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness shall be allowed with respect to reimbursement type obligations regarding workers’ compensation claimsthe Indebtedness referred to in Section 6.01(a)(vii). Indebtedness existing on the date of this Agreement and described on Schedule 6.01 attached hereto; "Xxxx to market" exposure resulting from any Swap Agreement entered into for protection against interest rate risks, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vi) and not for speculative purposes; Subordinated Debt under the Convertible Subordinated Debt Facility; purchase money Indebtedness of the Borrower or any Restricted Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including and Capital Lease Obligations (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and in an aggregate amount not exceeding, at any Indebtedness assumed one time outstanding, $2,000,000; other indebtedness in connection with the acquisition of an aggregate principal amount not exceeding $2,000,000 at any such assets or secured by a Lien on any such assets prior to the acquisition thereof, one time outstanding; and extensions, renewals, refinancings renewals and replacements of any such Indebtedness of the foregoing that do not increase the outstanding principal amount thereof; provided that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $25,000,000 at any time outstanding;
(vii) Indebtedness of the China JV in an aggregate principal amount not to exceed $20,000,000 at any time outstanding; provided that such Indebtedness is (A) secured only by assets of the China JV and not by assets of Holdings, the . The Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
(viii) unsecured reimbursement obligations (contingent or otherwise) in respect of letters of credit issued to support obligations of the Borrower or any Restricted Subsidiary incurred in the ordinary course of business; provided that (A) the aggregate amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not at any time exceed $5,000,000 and (B) any disbursement in respect of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement is made; and
(ix) other Funded Indebtedness if, on the date of the creation, issuance, incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such date.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower willnot, nor will they it permit any Restricted Subsidiary other Loan Party to, issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock)after the Effective Date, except that (i) Holdings may issue other than preferred stock or other preferred Equity Interests issued by a Subsidiary of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted Subsidiary.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a to another Subsidiary Loan Party that is otherwise of the Borrower pursuant to any merger permitted by this Agreement and is pledged as CollateralSection 6.03.
Appears in 1 contract
Samples: Term Loan Agreement (Lubys Inc)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary Loan Party to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term Loans, other than Indebtedness created under the Loan Documents (including Indebtedness under any Incremental Term Loans, and Letters of CreditFacilities incurred in compliance with Section 2.19);
(ii) Indebtedness existing on the Restatement Effective Date and set forth in Schedule 6.01 (other than 2008 Subordinated Notes purchased in the Debt Tender Offer) and extensions, renewals, replacements or refinancings and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than by the amount of any fees or expenses incurred in the refinancing thereof) or result in an earlier maturity date or decreased weighted average life thereof; provided that (A) the terms of any extension, renewal, replacement or refinancing shall be satisfactory to the Administrative Agent and (B) any Indebtedness in respect of any extension, renewal, replacement or refinancing of any 2008 Subordinated Notes that remain outstanding after April 30, 2003, shall be subordinate to the Obligations on terms no less favorable to the Lenders than the subordination provisions of the 2008 Subordinated Notes;
(iii) Indebtedness of the Borrower to Holdings or any Restricted Subsidiary Loan Party and of any Restricted Subsidiary Loan Party to the Borrower, Holdings Borrower or any other Restricted Subsidiary, in each case subject to Section 6.04Subsidiary Loan Party;
(iv) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Restricted Subsidiary Loan Party of Indebtedness of Holdings, the Borrower or any other Subsidiary, ; provided that such Guarantees are permitted by the Borrower or any Subsidiary Loan Party of Indebtedness of any Excluded Subsidiary shall be subject to Section 6.04;
(v) Indebtedness of the Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vi) Indebtedness of the Borrower or any Restricted Subsidiary Loan Party incurred to finance the acquisition, construction or improvement by it of any fixed or capital assets, including Capital Lease Obligations (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof or result in an earlier maturity date or decreased weighted average life thereof; provided that (A) such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement and (B) the aggregate principal amount of Indebtedness permitted by this clause (v) shall not exceed $25,000,000 at any time outstanding;
(vi) Indebtedness of any Person that becomes a Subsidiary Loan Party after the Effective Date; provided that (A) such Indebtedness exists at the time such Person becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary and (B) the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $25,000,000 15,000,000 at any time outstanding;
(vii) Indebtedness of the China JV in an aggregate principal amount not to exceed $20,000,000 at any time outstanding; provided that such Indebtedness is (A) secured only by assets of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
(viii) unsecured reimbursement obligations (contingent or otherwise) in respect of letters of credit issued to support obligations the Subordinated Exchange Debentures or other Indebtedness of the Borrower or any Restricted Subsidiary incurred in to refinance the ordinary course outstanding shares of businessSeries A Preferred Stock; provided that (A) the aggregate principal amount of all such letters of credit and unreimbursed disbursements in respect thereof Indebtedness shall not at any time exceed $5,000,000 and the aggregate liquidation preference of the outstanding shares of Series A Preferred Stock being so refinanced, (B) any disbursement in respect of any such letter of credit Indebtedness shall be reimbursed subordinate to the Obligations on terms no less favorable to the Lenders than the subordination provisions set forth in full within three Business Days the Subordinated Exchange Debenture Indenture, (C) such Indebtedness shall mature on a date that is at least six months after the Tranche D Maturity Date, (D) the terms of such disbursement is madeIndebtedness shall be reasonably satisfactory to the Administrative Agent and (E) no Default shall have occurred and be continuing or would result from the incurrence of such Indebtedness and the Borrower shall be in compliance, on a pro forma basis after giving effect to such incurrence, with the covenants contained in Sections 6.13, 6.14, 6.15 and 6.16 recomputed as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements are available as if such incurrence had occurred on the first day of such period;
(viii) Permitted Subordinated Debt; and
(ix) other Funded Indebtedness if, on the date of the creation, issuance, incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such date.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of unsecured Indebtedness of the Borrower and the Restricted Subsidiaries permitted herebySubsidiary Loan Parties in an aggregate principal amount not exceeding $25,000,000 at any time outstanding.
(cb) Neither Holdings nor the The Borrower willwill not, nor will they it permit any Restricted Subsidiary Loan Party to, issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock)Interests, except that the Borrower may issue (i) Holdings may issue preferred stock or other preferred Equity Interests shares of Holdings that are not Disqualified Series A Preferred Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) pursuant to Section 3 of this Section 6.01 as if such clause applied to Holdings the Series A Preferred Certificate of Designation and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by other preferred Equity Interest that does not constitute a Person other than Holdings, the Borrower or any Restricted SubsidiaryDisqualified Equity Interest.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.
Appears in 1 contract
Samples: Credit Agreement (Cumulus Media Inc)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents, including Refinancing Term Loans, other than any Incremental Refinancing Revolving Commitments (and Revolving Loans made thereunder), Refinancing Notes and Additional Term Loans, and Letters of CreditNotes;
(ii) (A) Indebtedness existing on the Restatement Effective Date and set forth in Schedule 6.01 and (B) extensions, renewals, refinancings renewals and replacements of such Indebtedness, provided that such extending, renewal or replacement Indebtedness (1) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced, (2) shall not be secured by any such assets of any obligor thereof that did not secure the Indebtedness that do being extended, renewed or replaced, (3) shall not increase the outstanding be in a principal amount thereof (other than by that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest, fees or expenses incurred in the refinancing thereofand premium thereon), (4) or result in shall not have an earlier stated maturity date or decreased shorter weighted average life thereofthan the Indebtedness being extended, renewed or replaced and (5) shall be subordinated to the Obligations on the same terms as the Indebtedness being extended, renewed or replaced is subordinated to the Obligations;
(iii) Indebtedness of the Borrower to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings Borrower or any other Restricted Subsidiary, provided (A) that Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary Loan Party shall be subject to Section 6.04 and (B) Indebtedness of the Borrower or of any Subsidiary Loan Party in each case subject to Section 6.04any Subsidiary that is not a Subsidiary Loan Party shall be subordinated to the Obligations pursuant to the Intercompany Note;
(iv) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Restricted Subsidiary of Indebtedness of Holdings, the Borrower or any other Subsidiary, provided that such Guarantees are (A) the Indebtedness so Guaranteed is permitted by this Section 6.04(other than clause (a)(ii)(A) (and extensions, renewals or replacements thereof) or (a)(vi)), (B) Guarantees by the Borrower or any Subsidiary Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 6.04 and (C) Guarantees permitted under this clause (iv) shall be subordinated to the Obligations of the applicable Subsidiary to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations;
(vA) Indebtedness of the Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vi) Indebtedness of the Borrower or any Restricted Subsidiary incurred to finance the acquisition, construction or improvement of any fixed property or capital assets, including Capital Lease Obligations (provided that such Obligations, Synthetic Lease Obligations, Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) in connection with any Permitted Acquisitions 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, provided that such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, and (B) extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase so long as the outstanding principal amount thereof; of such extensions, renewals and replacements does not exceed the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest, fees and premium payable by the terms of such Indebtedness thereon), provided that the aggregate principal amount of Indebtedness permitted by this clause (v) shall not exceed $25,000,000 at any time outstanding;
(vi) Indebtedness of any Person existing at the time such Person is acquired by the Borrower or of any Person that becomes a Subsidiary after the Effective Date, provided that such Indebtedness exists at the time such Person is acquired by the Borrower or becomes a Subsidiary and is not created in contemplation of or in connection with such Person being acquired by the Borrower or becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest, fees and premium payable by the terms of such Indebtedness thereon), provided that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $25,000,000 at any time outstanding;
(vii) Indebtedness of the China JV Foreign Subsidiaries in an aggregate principal amount not to exceed $20,000,000 35,000,000 at any time outstanding; provided that such Indebtedness is (A) secured only by assets of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
(viii) unsecured reimbursement Indebtedness (or, to the extent the Lien to secure such Indebtedness is otherwise permitted by Section 6.02(o) and such Lien is on property or assets not constituting Collateral, secured Indebtedness) of the Borrower or any Subsidiary (other than any Foreign Subsidiary) in an aggregate principal amount not exceeding $40,000,000 at any time outstanding;
(ix) Indebtedness owed to any Person (including obligations (contingent or otherwise) in respect of letters of credit issued for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to support reimbursement or indemnification obligations of the Borrower or any Restricted Subsidiary to such Person, in each case incurred in the ordinary course of business; provided that ;
(Ax) Indebtedness of the aggregate amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not at Borrower or any time exceed $5,000,000 and (B) any disbursement Subsidiary in respect of any such letter performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees, bank guarantees (including to support Taxes) and similar obligations (other than in respect of credit shall be reimbursed other Indebtedness), in full within three Business Days after such disbursement is made; andeach case provided in the ordinary course of business;
(ixxi) Indebtedness in respect of Swap Agreements permitted by Section 6.07;
(xii) Indebtedness permitted by Section 6.04;
(xiii) Indebtedness arising from the honoring by a bank or other Funded Indebtedness iffinancial institution of a check, on the date of the creation, issuance, incurrence draft or assumption of such Indebtedness similar instrument inadvertently (or, except in the case of Funded Indebtedness daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that becomes secured by collateral after the date such Indebtedness is createdextinguished within ten Business Days of incurrence;
(xiv) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business;
(xv) Indebtedness of Borrower or any of its Subsidiaries that may be deemed to exist in connection with agreements providing for indemnification, issuedpurchase price adjustments and similar obligations in connection with acquisitions or sales of assets and/or businesses.
(xvi) Subordinated Indebtedness or Senior Indebtedness; provided, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), that (x) the Leverage Ratio is less than 4.00 to 1.00 no Default or Event of Default shall have occurred and be continuing or would result therefrom and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Total Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA as of the last day for the most recent period of four most-recently ended fiscal quarters quarter (expressed as a percentage) for which financial statements have been were delivered (or were required to be delivered) pursuant to Section 5.01(a) or (b), as applicable, determined 5.01 to the Administrative Agent after giving effect to such Funded incurrence of such Subordinated Indebtedness and/or Senior Indebtedness shall be equal to or less than 6.00 to 1.00;
(xvii) Sponsor Subordinated Indebtedness;
(A) Indebtedness of the Borrower under the Second Lien Credit Agreement in a principal amount not to exceed the Second Lien Cap Amount (as defined in the Intercreditor Agreement), (B) any Refinancing (as defined in the Intercreditor Agreement) of such Indebtedness, including Refinancing Term Loans (as defined under the Second Lien Credit Agreement), Refinancing Notes (as defined under the Second Lien Credit Agreement), (C) Additional Term Notes (as defined under the Second Lien Credit Agreement), and (D) all contingent obligations of the other Loan Parties in respect of such indebtedness; and
(xix) Guarantees by Holdings of Indebtedness of the Borrower created under the (i) Loan Documents, including Refinancing Term Loans, Refinancing Revolving Commitments (and Revolving Loans made thereunder), Refinancing Notes and Additional Term Notes and extensions, renewals and replacements of such Indebtedness to be createdthe extent permitted hereunder and (ii) Second Lien Loan Documents, issuedincluding Refinancing Term Loans (as defined in the Second Lien Credit Agreement), incurred or assumed on such date Refinancing Notes (or becoming so secured on such date, as applicabledefined in the Second Lien Credit Agreement) and all Additional Term Notes (as defined in the Second Lien Credit Agreement) and extensions, renewals and replacements of such Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such dateextent permitted hereunder.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness of Holdings except Indebtedness created under (i) Indebtedness created under the Loan Documents, including Refinancing Term Loans, Refinancing Revolving Commitments (and Revolver Loans made thereunder), Refinancing Notes and Additional Term Notes, (ii) Indebtedness permitted under clause the Second Lien Loan Documents, including Refinancing Term Loans(as defined in the Second Lien Credit Agreement), Refinancing Notes (a)(iiias defined in the Second Lien Credit Agreement) of this Section 6.01 and Additional Term Notes (as defined in the Second Lien Credit Agreement), or (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted herebyas described in Section 6.08(a)(vi).
(c) Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, issue any preferred stock Equity Interests or other any Disqualified Equity Interests, except in the case of Holdings, preferred Equity Interests (including any Disqualified Stock), except that (i) Holdings may issue preferred stock or other preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted SubsidiaryQualified Equity Interests.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.
Appears in 1 contract
Samples: First Lien Credit Agreement (Jda Software Group Inc)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and Holdings and Neither Indemnitor nor the Borrower will, nor will not Indemnitor or Borrower permit any of the Indemnitor Group Restricted Subsidiary Subsidiaries to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term Loans, Indebtedness created under the Current Credit Agreement and under the other than Loan Documents (including any Incremental Term Loans, and Letters Indebtedness incurred pursuant to Section 2.21 or 2.23 of Creditthe Current Credit Agreement (as in effect on the date hereof));
(ii) (A) the Senior Notes and (B) Refinancing Indebtedness existing on in respect of the Restatement Effective Date Senior Notes (it being understood and agreed that, for purposes of this Section, any Indebtedness that is incurred for the purpose of repurchasing or redeeming any Senior Notes (or any Refinancing Indebtedness in respect thereof) shall, if otherwise meeting the requirements set forth in Schedule 6.01 the definition of the term “Refinancing Indebtedness”, be deemed to be Refinancing Indebtedness in respect of the Senior Notes (or such Refinancing Indebtedness), and extensionsshall be permitted to be incurred and be in existence pursuant to this Section 3.01(a) notwithstanding that the proceeds of such Refinancing Indebtedness shall not be applied to make such repurchase or redemption of the Senior Notes (or such Refinancing Indebtedness) immediately upon the incurrence thereof, renewals, refinancings and replacements if the proceeds of any such Refinancing Indebtedness that do not increase are applied to make such repurchase or redemption no later than 90 days following the outstanding principal amount thereof (other than by date of the amount of any fees or expenses incurred in the refinancing thereof) or result in an earlier maturity date or decreased weighted average life incurrence thereof;
(iii) Indebtedness (and Debt-Related Guarantees thereof) existing on the Effective Date or the Distribution Date and to the extent having a principal amount in excess of $5,000,000 individually or $10,000,000 in the aggregate or arising after the Effective Date and on or before the Distribution Date (and identified as such), set forth in Schedule 6.01 of the Current Credit Agreement (in each case, except for intercompany Indebtedness), any Refinancing Indebtedness in respect thereof and any intercompany Indebtedness existing on the Effective Date or the Distribution Date arising out of, or in connection with, the Transactions (including the Post- Effective Date Repayment);
(iv) Indebtedness of the Borrower to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary to Holdings, the Borrower, Holdings Borrower or any other Restricted SubsidiarySubsidiary so long as (A) such Indebtedness of any Subsidiary that is not a Loan Party to Holdings, the Borrower or any other Loan Party shall be permitted under Section 3.04(f) and (B) such Indebtedness of the Borrower or any other Loan Party owing to any Restricted Subsidiary shall be subordinated in each case subject right of payment to Section 6.04the Obligations on the terms set forth in the Global Intercompany Note (or any other agreement with substantially similar terms of subordination reasonably satisfactory to the Administrative Agent); provided that Restricted Subsidiaries that are not Loan Parties shall not be required to become party to the Global Intercompany Note until the 120th day after the Effective Date (or such longer period as agreed by the Administrative Agent, acting reasonably);
(ivv) Debt-Related Guarantees by the Borrower of Indebtedness of any Restricted Subsidiary and by any Restricted Subsidiary of Indebtedness of Holdings, the Borrower or any other Subsidiary, Restricted Subsidiary (other than Indebtedness incurred pursuant to clause (a)(iii) or (a)(vii) of this Section 3.01); provided that such Guarantees are (A) the Indebtedness so Guaranteed is permitted by Section 6.04;
this Section, (vB) Indebtedness of Debt-Related Guarantees by the Borrower or any other Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 3.04, and (C) Debt-Related Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Restricted Subsidiary in respect to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations (if such Indebtedness is subordinated to the Obligations) and (D) none of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided the Senior Notes shall be Guaranteed by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, any Subsidiary unless such obligations are reimbursed within 30 days following such drawing or incurrenceSubsidiary is a Loan Party;
(vi) (A) Indebtedness of any member of the Borrower or any Indemnitor Restricted Subsidiary Group incurred to finance the acquisition, construction construction, repair, replacement or improvement of any fixed or capital assets, including Capital Lease Obligations (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed by any member of Indemnitor Restricted Group in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof; provided that such Indebtedness is incurred prior to or within 270 days after such acquisition or the completion of such construction, repair, replacement or improvement, and (B) Refinancing Indebtedness in respect of Indebtedness incurred or assumed pursuant to clause (A) above; provided further that at the time of incurrence thereof, the aggregate principal amount of Indebtedness permitted by this clause (vi), together with any sale and leaseback transaction incurred pursuant to Section 3.06, outstanding under this clause (vi) at any time shall not exceed the greater of (x) $25,000,000 45,000,000 and (y) 1.00% of Consolidated Total Assets.
(A) Indebtedness of any Person that becomes a Indemnitor Group Restricted Subsidiary (or of any Person not previously a Indemnitor Group Restricted Subsidiary that is merged or consolidated with or into a Indemnitor Group Restricted Subsidiary in a transaction permitted hereunder) after the Distribution Date, or Indebtedness of any Person that is assumed by Indemnitor or any such Indemnitor Group Restricted Subsidiary in connection with an acquisition of assets by Indemnitor or such Indemnitor Group Restricted Subsidiary in an acquisition permitted by Section 3.04; provided that such Indebtedness exists at any the time outstandingsuch Person becomes a Indemnitor Group Restricted Subsidiary (or is so merged or consolidated) or such assets are acquired and is not created in contemplation of or in connection with such Person becoming a Indemnitor Group Restricted Subsidiary (or such merger or consolidation) or such assets being acquired and (B) Refinancing Indebtedness in respect of Indebtedness incurred or assumed, as applicable, pursuant to clause (A) above;
(viiviii) other Indebtedness of the China JV in an aggregate principal amount not to exceed $20,000,000 outstanding under this clause (viii) at any time outstandingnot exceeding, the greater of (x) $135,000,000 and (y) 3.00% of Consolidated Total Assets,
(ix) Indebtedness incurred pursuant to Permitted Receivables Facilities; provided that the Indebtedness outstanding in reliance on this clause (ix) shall not exceed, at the time of incurrence thereof, the greater of (x) $100,000,000 and (y) 2.25% of Consolidated Total Assets in the aggregate;
(x) Indebtedness and obligations in respect of self-insurance and obligations in respect of bids, tenders, trade contracts (other than for payment of Indebtedness), leases (other than Capital Lease Obligations), public or statutory obligations, surety, stay, customs and appeal bonds, performance bonds and other obligations of a like nature and similar obligations or obligations in respect of letters of credit, bank guarantees or similar instruments related thereto, in each case provided in the ordinary course of business;
(xi) Indebtedness in respect of Hedging Agreements permitted by Section 3.07 (including any Back to Back Arrangements);
(xii) Indebtedness in respect of any overdraft facilities, employee credit card programs, netting services, automated clearinghouse arrangements and other cash management and similar arrangements in the ordinary course of business; provided, that with respect to any such Indebtedness that constitutes Secured Cash Management Obligations and is incurred in reliance on this clause (xii) by Indemnitor Group Restricted Subsidiaries that are not Loan Parties, at the time such Indebtedness is incurred and after giving effect thereto, the Non- Guarantor Debt Basket shall not be exceeded;
(Axiii) secured only by assets Indebtedness in the form of deferred compensation (including indemnification obligations, obligations in respect of purchase price adjustments, earnouts, non-competition agreements and other contingent arrangements) or other arrangements representing acquisition consideration or deferred payments of a similar nature incurred in connection with any acquisition or other investment permitted under this Agreement;
(xiv) Refinancing Term Loan Indebtedness incurred pursuant to Section 2.23 of the China JV and Current Credit Agreement (as in effect on the Distribution Date);
(xv) Alternative Incremental Facility Debt, provided that the aggregate principal amount of such Alternative Incremental Facility Debt shall not by assets exceed the amount permitted under Section 2.21 of the Current Credit Agreement (as in effect on the Distribution Date);
(xvi) Indebtedness representing deferred compensation to directors, officers, consultants or employees of Holdings, the Borrower of any other and the Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
(viii) unsecured reimbursement obligations (contingent or otherwise) in respect of letters of credit issued to support obligations of the Borrower or any Restricted Subsidiary Subsidiaries incurred in the ordinary course of business;
(xvii) Indebtedness consisting of promissory notes issued by any Loan Party to current or former officers, directors, consultants and employees or their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of Holdings permitted by Section 3.08;
(xviii) [Reserved];
(xix) Indebtedness of Indemnitor Group Restricted Subsidiaries that are not Loan Parties under bilateral local law credit and other working capital facilities; provided that at the time such Indebtedness is incurred under this clause (xix) and after giving effect thereto, such incurrence shall not cause the Non-Guarantor Debt Basket to be exceeded (without duplication of any Cash Management Financing Facilities); provided, further that any such Indebtedness secured by a Letter of Credit issued under the Current Credit Agreement in a principal amount not to exceed the face amount of such Indebtedness shall not count toward the aggregate amount permitted under this Section 3.01(a)(xix) (including the Non-Guarantor Debt Basket);
(xx) other Indebtedness of Indemnitor or any of the Indemnitor Group Restricted Subsidiaries so long as (A) after giving thereto on a Pro Forma Basis (1) in the aggregate amount case of all such letters Indebtedness secured by a Lien on the Collateral, the Consolidated Senior Secured Leverage Ratio does not exceed 1.50 to 1.00 and (2) in the case of credit any Indebtedness that is unsecured, (x) the Consolidated Total Leverage Ratio is no greater than 0.50:1.00 less than the applicable maximum Consolidated Total Leverage Ratio set forth in Section 3.12 and unreimbursed disbursements in respect thereof shall not at any time exceed $5,000,000 and (y) the Consolidated Interest Coverage Ratio is greater than or equal to 2.75 to 1.00, (B) any disbursement in respect the incurrence of any such letter of credit Indebtedness pursuant to this clause (xx) by a Indemnitor Group Restricted Subsidiary that is not a Loan Party shall not cause the Non-Guarantor Debt Basket to be reimbursed in full within three Business Days exceeded (after such disbursement is made; and
giving effect thereto on a Pro Forma Basis), (ixC) other Funded Indebtedness if, on the date of the creation, issuance, incurrence or assumption of such Indebtedness (shall not mature or, in the case of Funded unsecured Indebtedness that becomes and Indebtedness secured by collateral after a Lien on the date Collateral that is junior to the Liens securing the Obligations, require any scheduled amortization or require any scheduled amortization or require scheduled payments of principal or shall be subject to any mandatory redemption, repurchase, repayment or sinking fund obligation, in each case, prior to the Latest Maturity Date as of such date, and shall have a weighted average life to maturity not shorter than the longest remaining weighted average life to maturity of the Loans, (D) no Event of Default shall exist or shall result therefrom (it being understood that if the proceeds of the relevant Indebtedness will be applied to finance a Limited Condition Transaction and the Borrower has made an LCT Election, no Event of Default shall exist and be continuing as of the LCT Test Date) and (E) such Indebtedness is created, issued, incurred or assumed, has terms and conditions that in the date such Funded good faith determination of the Borrower are no less favorable to the Borrower (when taken as a whole) to the terms and conditions of the Loan Documents (when taken as a whole);
(xxi) Indebtedness becomes secured by such collateral), constituting obligations arising in respect of Cash Management Services;
(xxxii) Indebtedness constituting Secured Hedging Obligations;
(xxiii) Indebtedness consisting of (A) the Leverage Ratio is less than 4.00 to 1.00 and financing of insurance premiums or (yB) if such take- or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(xxiv) Indebtedness is constituting Secured Funded IndebtednessSupply Chain Financing Obligations;
(xxv) Indebtedness incurred by Indemnitor or a Indemnitor Group Restricted Subsidiary in connection with bankers’ acceptances, discounted bills of exchange or the Secured Leverage Ratio is less than 2.5 to 1.0discounting or factoring of receivables for credit management purposes, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed undertaken in the ordinary course of business on such date (or becoming so secured arm’s length commercial terms on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such date.a non- recourse basis;
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (ixxvi) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted incurred by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock), except that (i) Holdings may issue preferred stock or other preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) HoldingsIndemnitor, the Borrower or any of the Indemnitor Group Restricted Subsidiaries in respect of letters of credit, bank guarantees, bankers’ acceptances or similar instruments issued or created in the ordinary course of business or consistent with past practice, in each case, in respect of workers’ compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other reimbursement-type obligations regarding workers’ compensation claims;
(xxvii) (x) Indebtedness in respect of obligations of the Borrower, Indemnitor or any Indemnitor Group Restricted Subsidiary may issue directors’ qualifying shares to pay the deferred purchase price of goods or shares required services or progress payments in connection with such goods and services; provided that such obligations are incurred in connection with open accounts extended by applicable law to be held by a Person other than Holdingssuppliers on customary trade terms in the ordinary course of business and not in connection with the borrowing of money and (y) Indebtedness in respect of intercompany obligations of the Borrower, the Borrower Indemnitor or any Restricted Subsidiary.Subsidiary in respect of accounts payable incurred in connection with goods sold or services rendered in the ordinary course of business and not in connection with the borrowing of money;
(dxxviii) Neither Holdings nor Indebtedness to a customer to finance the Borrower will permit acquisition of any equipment necessary to perform services for such customer; provided that the Bermuda IP Subsidiary terms of such Indebtedness are consistent with those entered into with respect to create, incur, assume or permit to exist any similar Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed prior to the Borrower Distribution Date, including that (x) the repayment of such Indebtedness is conditional upon such customer ordering a specific volume of goods and (y) such Indebtedness does not bear interest or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.provide for scheduled amortization or maturity;
Appears in 1 contract
Samples: Indemnification and Reimbursement Agreement (Resideo Technologies, Inc.)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term Loans, other than any Incremental Term Loans, (x) Indebtedness created under the Loan Documents and Letters (y) Indebtedness created under the Loan Documents (as defined in the Credit Agreement) not to exceed an aggregate principal amount of Credit$1,225,000,000;
(ii) (A) the Convertible Notes and (B) Subordinated Refinancing Indebtedness in respect of the Convertible Notes or Additional Subordinated Debt incurred pursuant to this clause (B);
(iii) Indebtedness existing on the Restatement Effective Date date of the Original Tranche C Credit Agreement and set forth in Schedule 6.01 (other than the Existing Credit Agreement) and refinancings, extensions, renewals, refinancings renewals and replacements of any such Indebtedness, provided that such refinancing, extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that do was not increase an obligor with respect to the outstanding Indebtedness being refinanced, extended, renewed or replaced, (B) shall not be in a principal amount thereof that exceeds the principal amount of the Indebtedness being refinanced, extended, renewed or replaced (other than plus any accrued but unpaid interest and premium or penalty payable by the amount terms of any such Indebtedness thereon and reasonable fees or and expenses incurred in the refinancing thereofassociated therewith), (C) or result in shall not have an earlier maturity date or decreased shorter weighted average life thereofthan the Indebtedness being refinanced, extended, renewed or replaced and (D) if the Indebtedness being refinanced, extended, renewed or replaced is subordinated to the Obligations, such Indebtedness shall be subordinated to the Obligations on the same terms as the Indebtedness being refinanced, extended, renewed or replaced;
(iiiiv) Indebtedness of the Borrower to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings Borrower or any other Restricted SubsidiarySubsidiary (other than Indebtedness of any Broker Dealer Subsidiary to a Subsidiary that is not a Loan Party), in each case provided that (A) Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary Loan Party shall be subject to Section 6.04, (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary Loan Party to any Subsidiary that is not a Subsidiary Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent and (C) Indebtedness of the Additional Borrower to Borrower shall be pursuant to an intercompany loan or note (the “Additional Borrower Intercompany Loan”) reasonably satisfactory to the Administrative Agent and pledged as Collateral under the Security Documents;
(ivv) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Restricted Subsidiary (other than any Broker Dealer Subsidiary) of Indebtedness of Holdings, the Borrower or any other Subsidiary, provided that such Guarantees are (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(iii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 6.04, (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (D) none of the Convertible Notes or Additional Subordinated Debt shall be Guaranteed by any Subsidiary, unless, in the case of any Additional Subordinated Debt, such Subsidiary is a Loan Party that has Guaranteed the Obligations pursuant to the Collateral Agreement;
(vA) Indebtedness of the Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or (other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vithan any Broker Dealer Subsidiary) 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 (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) 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, provided that such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, and (B) extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase so long as the outstanding principal amount thereof; of such refinancings, extensions, renewals and replacements does not exceed the principal amount of the Indebtedness being refinanced, extended, renewed or replaced (plus any accrued but unpaid interest and premium or penalty payable by the terms of such Indebtedness thereon and reasonable fees and expenses associated therewith), provided that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $25,000,000 20,000,000 at any time outstanding;
(vii) Indebtedness of any Person that is merged or consolidated with and into the China JV Borrower or any Subsidiary (other than a Broker Dealer Subsidiary) or of any Person that otherwise becomes a Subsidiary (other than a Broker Dealer Subsidiary) after the date of the Original Tranche C Credit Agreement, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium payable by the terms of such Indebtedness thereon), provided that the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $10,000,000 at any time outstanding;
(viii) other unsecured Indebtedness of the Borrower and the Subsidiaries (other than the Broker Dealer Subsidiaries) in an aggregate principal amount not to exceed exceeding $20,000,000 at any time outstanding; , provided that such the aggregate principal amount of Indebtedness is (A) secured only by assets of the China JV and Subsidiaries that are not Subsidiary Loan Parties permitted by assets of Holdings, the Borrower of this clause (viii) shall not exceed $5,000,000 at any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiarytime outstanding;
(viiiix) unsecured reimbursement Indebtedness owed to any Person (including obligations (contingent or otherwise) in respect of letters of credit issued for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to support reimbursement or indemnification obligations of the Borrower or any Restricted Subsidiary to such Person, in each case incurred in the ordinary course of business; ;
(x) Indebtedness of the Borrower or any Subsidiary (other than any Broker Dealer Subsidiary) in respect of performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees and similar obligations (other than in respect of other Indebtedness), in each case provided that in the ordinary course of business;
(xi) Indebtedness in respect of Swap Agreements permitted by Section 6.07;
(xii) (A) the aggregate amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not at any time exceed $5,000,000 and (B) any disbursement in respect of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement Additional Subordinated Debt that is made; and
(ix) other Funded Indebtedness if, issued for cash payable on the date of issuance thereof or as consideration for a Permitted Acquisition, provided that (1) if such Additional Subordinated Debt is issued for cash, the creation, issuance, incurrence or assumption Net Proceeds of such Indebtedness (orAdditional Subordinated Debt are used, in promptly after such Net Proceeds are received by the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral)Borrower, (x) the Leverage Ratio is less than 4.00 to 1.00 and consummate one or more Permitted Acquisitions or (y) to prepay Term Loans pursuant to Section 2.11(c), (2) no Default has occurred and is continuing or would result therefrom and (3) the Borrower is in compliance on a Pro Forma Basis after giving effect to the incurrence of such Additional Subordinated Debt with the covenants contained in Sections 6.12 and 6.13 recomputed as of the last day of the most-recently ended fiscal quarter of the Borrower prior to the issuance of such Additional Subordinated Debt and has delivered to the Administrative Agent a certificate of a Financial Officer to such effect, together with all relevant financial information reasonably requested by the Administrative Agent, including reasonably detailed calculations demonstrating compliance with clause (3) above (which calculations shall, if such Indebtedness is Secured Funded Indebtedness, made as of the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for last day of any fiscal quarter of the most recent period of four fiscal quarters Borrower for which the Borrower has not delivered to the Administrative Agent the financial statements have been and certificate of a Financial Officer required to be delivered pursuant to by Section 5.01(a) or (b) and Section 5.01(c), as applicablerespectively, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicableaccompanied by a reasonably detailed calculation of Consolidated EBITDA and Consolidated Cash Interest Expense for the relevant period) and all (B) Subordinated Refinancing Indebtedness in respect of Additional Subordinated Debt issued pursuant to be prepaid with clause (A) above or this clause (B);
(xiii) Indebtedness arising from the proceeds honoring by a bank or financial institution of a check or similar instrument drawn against insufficient funds in the ordinary course of business, so long as such Funded Indebtedness on is repaid within five Business Days; and
(xiv) Indebtedness of TRF owing to Borrower or within 10 days after such dateanother Subsidiary not to exceed $10,000,000 at any time outstanding.
(b) Holdings The Borrower will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower willnot, nor will they it permit any Restricted Subsidiary to, issue any preferred stock Equity Interests or other any Disqualified Equity Interests, except in the case of the Borrower, (i) preferred Equity Interests that are Qualified Equity Interests, (ii) preferred Equity Interests issued and outstanding on the Effective Date and set forth on Schedule 6.01(b), (iii) preferred Equity Interests (including any Disqualified x) having terms that, taken as a whole, are no less favorable to the Lenders than those of the Series C Preferred Stock), except that as determined in good faith by senior management of the Borrower, (iy) Holdings may issue preferred stock the proceeds of which are used to redeem, repurchase or other preferred Equity Interests retire the outstanding shares of Holdings that are not Disqualified Series C Preferred Stock and Disqualified (z) the aggregate liquidation preference of which is no greater than that of the shares of Series C Preferred Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings being redeemed, repurchased or refinanced and (iiiv) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted SubsidiarySeries D Preferred Stock.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Nasdaq Stock Market Inc)
Indebtedness; Certain Equity Securities. (a) The Holdings and the Borrower will not, and Holdings and the Borrower will not permit any other Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(ia) Term Loans, other than any Incremental Term Loans, and Letters of CreditIndebtedness under the Loan Documents;
(iib) Indebtedness of Holdings under Qualifying Holdings Debt;
(c) Indebtedness of Holdings under the High Yield Notes and refinancings thereof, provided that any Indebtedness issued in any such refinancing shall be on terms no less favorable to Holdings and its Restricted Subsidiaries than the High Yield Notes, shall be in an aggregate principal amount no greater than the High Yield Notes refinanced and shall not require any payment of principal thereof (upon maturity or by mandatory sinking fund, mandatory redemption, mandatory prepayment or otherwise) prior to the date that is one year after the Term Maturity Date;
(d) ADP Outstandings in an aggregate amount not to exceed $750,000,000 at any time outstanding;
(e) Indebtedness existing on the Restatement Effective Date date hereof and set forth in Schedule 6.01 and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than by the amount of any fees or expenses incurred in the refinancing thereof) or result in an earlier maturity date or decreased weighted average life decrease the Weighted Average Life to Maturity thereof;
(iiif) Indebtedness of the Borrower Holdings to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings or any other Restricted Subsidiary, in each case ; provided that Indebtedness of any Subsidiary that is not a Loan Party to any Loan Party shall be subject to Section 6.04;
(ivg) Guarantees by the Borrower Holdings of Indebtedness of any Subsidiary and by any Restricted Subsidiary of Indebtedness of the Borrower or any other Subsidiary; provided that Guarantees by Holdings, the Borrower or any other Subsidiary, provided Subsidiary Loan Party of Indebtedness of any Subsidiary that such Guarantees are permitted by is not a Loan Party shall be subject to Section 6.04;
(vh) Indebtedness of the Borrower or any Person that becomes a Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vi) Indebtedness of the Borrower or any is merged into a Restricted Subsidiary incurred to finance after the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations date hereof (provided that such Indebtedness exists at the time such Person becomes a Restricted Subsidiary and is incurred prior to not created in contemplation of or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by Person becoming a Lien on any such assets prior to the acquisition thereof, Restricted Subsidiary) and extensions, renewals, refinancings and renewals or replacements of any such Indebtedness that do not increase the outstanding principal amount thereof or result in an earlier maturity date or decreased Weighted Average Life to Maturity thereof;
(i) Indebtedness in respect of performance, surety or appeal bonds and Guarantees incurred or provided in the ordinary course of business securing the performance of contractual, franchise, lease, self-insurance or license obligations and not in connection with an incurrence of Indebtedness;
(j) Indebtedness in respect of customary agreements providing for indemnification, purchase price adjustments after closing or similar obligations in connection with the disposition of any assets (other than Guarantees of Indebtedness incurred by any Person acquiring all or any portion of such assets for the purpose of financing such acquisition); provided that (i) any such disposition is permitted by Section 6.05, (ii) the aggregate principal amount of such Indebtedness does not exceed the gross proceeds actually received by Holdings or any Restricted Subsidiary in connection with such disposition and (iii) to the extent the gross proceeds thereof constitute Net Proceeds hereunder, such Net Proceeds are applied in accordance with Sections 2.08(f) and 2.11(b);
(k) Indebtedness of Holdings and the Restricted Subsidiaries pursuant to Hedging Agreements entered into with Lenders or their affiliates in the ordinary course of business and not for speculative purposes;
(l) [Intentionally deleted];
(m) [Intentionally deleted];
(n) [Intentionally deleted];
(o) other Indebtedness of Holdings or any Restricted Subsidiary in an aggregate principal amount at any time outstanding, together with the aggregate amount of Attributable Debt in respect of all Sale and Leaseback Transactions then outstanding, not exceeding 15% of the consolidated net property, plant and equipment of Holdings and the Restricted Subsidiaries at such time;
(p) Indebtedness of the Borrower consisting of Qualifying Borrower Indebtedness;
(q) Permitted Specified Security Hedging Transactions;
(r) Indebtedness of Holdings or the Borrower incurred pursuant to a Qualifying Issuance; provided that the aggregate principal amount Net Proceeds in cash received by Holdings and/or the Borrower from the issuance of Indebtedness permitted by this clause (vi) such Indebtedness, plus the Net Proceeds in cash from any Sale and Leaseback Transaction constituting a Qualifying Issuance shall not exceed $25,000,000 at any time outstanding350,000,000;
(viis) Indebtedness with respect to industrial revenue bonds issued for the benefit of the China JV Borrower, Holdings or any Restricted Subsidiary in an aggregate principal or face amount not to exceed $50,000,000;
(t) unsecured Indebtedness of Holdings in an aggregate principal amount not to exceed $20,000,000 at any time outstanding; provided that 100,000,000 incurred prior to the consummation of the Structured Note Financing so long as (i) the proceeds of such Indebtedness is are used solely to make the capital contributions described in Section 6.04(u) and (Aii) secured only by assets of the China JV terms and not by assets of Holdings, the Borrower conditions of any other Restricted Subsidiary such Indebtedness shall have been approved by all the Incremental Facility Arrangers (if any) and (B) not Guaranteed by Holdings, the Borrower or any other Restricted SubsidiaryAdministrative Agent prior to the issuance thereof;
(viiiu) unsecured reimbursement obligations (contingent or otherwise) Indebtedness of Holdings owed to the Structured Note Trust in respect of letters of credit issued an aggregate principal amount up to support obligations $1,500,000,000 in connection with the consummation of the Borrower or any Restricted Subsidiary incurred in Structured Note Financing, so long as the ordinary course terms and conditions of business; provided that such Indebtedness shall have been approved by all the Incremental Facility Arrangers (Aif any) and the aggregate amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not at any time exceed $5,000,000 and (B) any disbursement in respect of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement is madeAdministrative Agent prior to the issuance thereof; and
(ixv) other Funded Indebtedness if, on the any date of the creation, issuance, incurrence on or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is createdLeverage Target Date, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such date.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower owing to a Receivables Subsidiary under a Permitted Receivables Financing; provided that, notwithstanding anything in this Agreement to the contrary, the Borrower and the other Restricted Subsidiaries permitted hereby.
(c) Neither may not Guarantee any Indebtedness of Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock), except that under (i) Holdings may issue preferred stock the High Yield Notes or other preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted SubsidiaryQualifying Holdings Debt.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term Loans, other than any Incremental Term Loans, and Letters of CreditIndebtedness created under the Loan Documents;
(ii) the Subordinated Debt;
(iii) the Junior Subordinated Note;
(iv) Indebtedness existing on the Restatement Effective Date and set forth in Schedule 6.01 and extensions, renewals, refinancings and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than by the amount of any fees or expenses incurred in the refinancing thereof) or result in an earlier maturity date or decreased weighted average life thereof;
(iiiv) Indebtedness of the Borrower to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings or any other Restricted Subsidiary, in each case subject to Section 6.04;
(ivvi) Guarantees by the Borrower and by any Restricted Subsidiary of Indebtedness of Holdings, the Borrower or any other Subsidiary, provided that such Guarantees are permitted by the Borrower or any Subsidiary Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 6.04;
(vvii) Indebtedness of the Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vi) 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 (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof; , provided that the aggregate principal amount of Indebtedness permitted by this clause (vivii) shall not exceed $25,000,000 at any time outstanding;
(viiviii) Indebtedness of the China JV in an aggregate principal amount not to exceed $20,000,000 at any time outstanding; provided that such Indebtedness is (A) secured only by assets of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
(viii) unsecured reimbursement obligations (contingent or otherwise) in respect of letters of credit issued to support obligations of the Borrower or any Restricted Subsidiary incurred in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion guarantees provided by the Borrower and the Subsidiaries in the ordinary course of their business; , provided that (A) upon the aggregate amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not at any time exceed $5,000,000 and (B) any disbursement in respect of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement is made; and
(ix) other Funded Indebtedness if, on the date of the creation, issuance, incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such date.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower willwith respect to reimbursement type obligations regarding workers’ compensation claims, nor will they permit any Restricted Subsidiary to, issue any preferred stock such obligations are reimbursed within 30 days following such drawing or other preferred Equity Interests (including any Disqualified Stock), except that (i) Holdings may issue preferred stock or other preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted Subsidiary.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.incurrence;
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and Neither Holdings and nor the Borrower will, nor will not they permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term Loans, other than any Incremental Term Loans, and Letters of CreditIndebtedness created under the Loan Documents;
(ii) in the case of the Borrower, the Existing Senior Subordinated Notes in an aggregate principal amount not to exceed (x) the aggregate principal amount of the Existing Senior Subordinated Notes outstanding immediately following consummation of the Debt Tender Offer less (y) the aggregate principal amount of Existing Senior Subordinated Notes redeemed, repurchased or retired pursuant to Section 6.08 (and extensions, renewals and replacements of any such Existing Senior Subordinated Notes that do not increase the outstanding principal amount thereof (plus accrued and unpaid interest thereon) or result in an earlier maturity date or decreased weighted average life thereof and that do not have terms less favorable to the Lenders and the Borrower than the Existing Senior Subordinated Notes);
(iii) in the case of the Borrower, the Senior Subordinated Notes in an aggregate principal amount not to exceed (x) $200,000,000 less (y) the aggregate principal amount of Senior Subordinated Notes redeemed, repurchased or retired pursuant to Section 6.08 (and extensions, renewals and replacements of any such Senior Subordinated Notes that do not increase the outstanding principal amount thereof (plus accrued and unpaid interest thereon) or result in an earlier maturity date or decreased weighted average life thereof and that do not have terms less favorable to the Lenders and the Borrower than the Senior Subordinated Notes);
(iv) Indebtedness existing on the Restatement Effective Date (other than the Existing Senior Subordinated Notes and the Senior Subordinated Notes) and set forth in Schedule 6.01 and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than by the amount of any fees or expenses incurred in the refinancing thereof) or result in an earlier maturity date or decreased weighted average life thereof;
(iiiv) Indebtedness of the Borrower to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings or any other Restricted Subsidiary, in each case subject to Section 6.04;
(iv) Guarantees by the Borrower and by any Restricted Subsidiary of Indebtedness of Holdings, the Borrower or any other Subsidiary, provided ; PROVIDED that such Guarantees are permitted by (A) Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary Loan Party shall be subject to Section 6.04;
6.04 and (vB) Indebtedness of the Borrower or to any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vi) Indebtedness of the Borrower or any Restricted Subsidiary incurred Loan Party to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations (provided Subsidiary that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof; provided that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $25,000,000 at any time outstanding;
(vii) Indebtedness of the China JV in an aggregate principal amount not to exceed $20,000,000 at any time outstanding; provided that such Indebtedness is (A) secured only by assets of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
(viii) unsecured reimbursement obligations (contingent or otherwise) in respect of letters of credit issued to support obligations of the Borrower or any Restricted Subsidiary incurred in the ordinary course of business; provided that (A) the aggregate amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not at any time exceed $5,000,000 and (B) any disbursement in respect of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement is made; and
(ix) other Funded Indebtedness if, on the date of the creation, issuance, incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such date.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock), except that (i) Holdings may issue preferred stock or other preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted Subsidiary.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.shall be subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent;
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Parent Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term Loans, other than any Indebtedness created under the Loan Documents (including Incremental Term Loans, and Letters of CreditLoans incurred in compliance with 2.23);
(ii) Indebtedness existing on the Restatement Original Effective Date and set forth in Schedule 6.01 and extensions, renewals, replacements and refinancings and replacements of any such Indebtedness (made in accordance with clause (vi) of Section 6.08(b) with the proceeds of Permitted Refinancing Securities, in the case of Junior Debt Securities) that do not increase the outstanding principal amount thereof (other than except by the amount of any fees premium or expenses incurred fee paid or payable in the refinancing thereofconnection with such extension, renewal or replacement) or result in an earlier maturity date or decreased weighted average life thereof; provided that (A) it is understood that extensions, renewals, replacements and refinancings of any such Indebtedness set forth in Schedule 6.01 that is a revolving credit facility as of the Original Effective Date may be made with Indebtedness that is in the form of revolving credit facilities so long as the committed amount thereof is not increased (except by the amount of any fee paid or payable in connection with such extension, renewal or replacement), and such extensions, renewals, replacements and refinancings do not result in an earlier maturity date or decreased weighted average life of the committed amount thereof and (B) it is understood that Designated Debt Securities purchased pursuant to the Debt Tender Offers shall be retired and not extended, renewed, replaced or refinanced under this clause;
(iii) Indebtedness of the Parent Borrower to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings Parent Borrower or any other Restricted Subsidiary, in each case ; provided that Indebtedness of any Subsidiary that is not a Loan Party owing to any Loan Party shall be subject to Section 6.04;
(iv) Guarantees by the Parent Borrower of Indebtedness of any Subsidiary and by any Restricted Subsidiary of Indebtedness of Holdings, the Parent Borrower or any other Subsidiary, ; provided that such Guarantees are permitted by any Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 6.04;
(v) Indebtedness of the Parent Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vi) 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 (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof or result in an earlier maturity date or decreased weighted average life thereof; provided that (A) such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement and (B) the aggregate principal amount of Indebtedness permitted by this clause (v) and clause (vi) below shall not exceed $100,000,000 at any time outstanding;
(vi) Indebtedness of any Person that becomes a Subsidiary after the Original Effective Date; provided that (A) such Indebtedness exists at the time such Person becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary and (B) the aggregate principal amount of Indebtedness permitted by this clause (vi) and clause (v) above shall not exceed $25,000,000 at any time outstandingbe subject to the limitation set forth in clause (v) above;
(vii) Indebtedness of the China JV Parent Borrower in an aggregate principal amount not to exceed $20,000,000 at any time outstandingrespect of Permitted Debt Securities (other than Permitted Debt Securities that are permitted under clause (ii) above); provided that such Indebtedness is Permitted Debt Securities are issued for cash consideration and the Net Proceeds therefrom are either applied as Monetary Acquisition Consideration in respect of a Permitted Acquisition within 30 days after receipt of such Net Proceeds (Aand deposited with the Administrative Agent until so applied) secured only by assets or treated as Net Proceeds of a Prepayment Event in respect of the China JV and not by assets incurrence of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted SubsidiaryIndebtedness;
(viii) unsecured reimbursement obligations (contingent or otherwise) in respect of letters of credit issued to support obligations Indebtedness of the Parent Borrower or any Restricted Subsidiary incurred of its Subsidiaries 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 that such Indebtedness is repaid within two Business Days after being incurred;
(ix) unsecured Indebtedness of the Parent Borrower or any of its Subsidiaries as an account party in respect of letters of credit issued for the account of the Parent Borrower or such Subsidiary, as the case may be, that either constitute trade letters of credit or are obtained in order to provide security for workers’ compensation claims or pension plans, payment obligations in connection with self-insurance, reclamation or closure liabilities or similar requirements, in each case in the ordinary course of business; provided that
(A) such Indebtedness is not Guaranteed by any of the aggregate amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not at any time exceed $5,000,000 Parent Borrower or its Subsidiaries and (B) any disbursement in respect of Indebtedness resulting from a drawing under any such letter of credit shall be reimbursed in full is repaid within three two Business Days after such disbursement is made; anddrawing;
(ix) other Funded Indebtedness if, on the date of the creation, issuance, incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) obligations of the Leverage Ratio is less than 4.00 to 1.00 Parent Borrower or any of its Subsidiaries in respect of performance bonds and (y) if such Indebtedness is Secured Funded Indebtednesscompletion, the Secured Leverage Ratio is less than 2.5 to 1.0guarantee, surety and similar bonds, in each case calculated based on Consolidated EBITDA for obtained in the most recent period ordinary course of four fiscal quarters for which financial statements have been delivered pursuant business to Section 5.01(asupport statutory and contractual obligations (other than Indebtedness) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with arising in the proceeds ordinary course of such Funded Indebtedness on or within 10 days after such date.business;
(bxi) Holdings will not create, incur, assume industrial revenue bonds or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of similar tax-exempt Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock), except that (i) Holdings may issue preferred stock or other preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdings, the Parent Borrower or any Restricted of its Subsidiaries incurred to finance the construction or improvement of operations of the Parent Borrower and its Subsidiaries in an aggregate principal amount not exceeding $50,000,000 at any time outstanding;
(xii) Indebtedness of Foreign Subsidiaries (other than Foreign Loan Parties), including, factoring, securitization and similar transactions involving the receivables of such Foreign Subsidiaries, in an aggregate principal amount not exceeding $200,000,000 at any time outstanding; provided that Indebtedness of a Foreign Subsidiary may issue directors’ qualifying shares or shares required by applicable law shall not be counted against such $200,000,000 limitation to be held the extent such Indebtedness is (A) supported by a Person other than Holdings, Letter of Credit and (B) such Foreign Subsidiary has agreed (pursuant to an agreement or instrument entered into with the Administrative Agent or pursuant to an agreement or instrument entered into with a Primary Borrower or that has been assigned to the Administrative Agent as collateral pursuant to the relevant Security Document in a manner reasonably satisfactory to the Administrative Agent) to reimburse any Restricted Subsidiary.drawing under such Letter of Credit;
(dxiii) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed Parent Borrower issued as consideration for any Permitted Acquisition so long as such Indebtedness (A) is unsecured and subordinated to the Borrower or a Subsidiary Loan Party that is otherwise permitted Obligations on terms reasonably satisfactory to the Administrative Agent, and (B) satisfies all requirements set forth in the definition of the term Permitted Debt Securities;
(xiv) Guarantees by this Agreement and is pledged as Collateral.Foreign Subsidiaries located in Brazil in an aggregate amount not exceeding $100,000,000 at any time outstanding;
Appears in 1 contract
Samples: Credit Agreement (Mosaic Co)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term Loans, other than any Incremental Term Loans, (x) Indebtedness created under the Loan Documents and Letters (y) Indebtedness created under the Tranche C Loan Documents not to exceed an aggregate principal amount of Credit$1,100,000,000;
(ii) (A) the Convertible Notes and (B) Subordinated Refinancing Indebtedness in respect of the Convertible Notes or Additional Subordinated Debt incurred pursuant to this clause (B);
(iii) Indebtedness existing on the Restatement Effective Date date hereof and set forth in Schedule 6.01 (other than the Existing Credit Agreement) and refinancings, extensions, renewals, refinancings renewals and replacements of any such Indebtedness, provided that such refinancing, extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that do was not increase an obligor with respect to the outstanding Indebtedness being refinanced, extended, renewed or replaced, (B) shall not be in a principal amount thereof that exceeds the principal amount of the Indebtedness being refinanced, extended, renewed or replaced (other than plus any accrued but unpaid interest and premium or penalty payable by the amount terms of any such Indebtedness thereon and reasonable fees or and expenses incurred in the refinancing thereofassociated therewith), (C) or result in shall not have an earlier maturity date or decreased shorter weighted average life thereofthan the Indebtedness being refinanced, extended, renewed or replaced and (D) if the Indebtedness being refinanced, extended, renewed or replaced is subordinated to the Obligations, such Indebtedness shall be subordinated to the Obligations on the same terms as the Indebtedness being refinanced, extended, renewed or replaced;
(iiiiv) Indebtedness of the Borrower to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings Borrower or any other Restricted SubsidiarySubsidiary (other than Indebtedness of any Broker Dealer Subsidiary to a Subsidiary that is not a Loan Party), in each case provided that (A) Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary Loan Party shall be subject to Section 6.04, (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary Loan Party to any Subsidiary that is not a Subsidiary Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent and (C) Indebtedness of the Tranche C Additional Borrower to Borrower shall be pursuant to an intercompany loan or note (the “Tranche C Additional Borrower Intercompany Loan”) reasonably satisfactory to the Administrative Agent and pledged as Collateral under the Security Documents;
(ivv) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Restricted Subsidiary (other than any Broker Dealer Subsidiary) of Indebtedness of Holdings, the Borrower or any other Subsidiary, provided that such Guarantees are (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(iii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 6.04, (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (D) none of the Convertible Notes or Additional Subordinated Debt shall be Guaranteed by any Subsidiary, unless, in the case of any Additional Subordinated Debt, such Subsidiary is a Loan Party that has Guaranteed the Obligations pursuant to the Collateral Agreement;
(vA) Indebtedness of the Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or (other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vithan any Broker Dealer Subsidiary) 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 (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) 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, provided that such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, and (B) extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase so long as the outstanding principal amount thereof; of such refinancings, extensions, renewals and replacements does not exceed the principal amount of the Indebtedness being refinanced, extended, renewed or replaced (plus any accrued but unpaid interest and premium or penalty payable by the terms of such Indebtedness thereon and reasonable fees and expenses associated therewith), provided that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $25,000,000 20,000,000 at any time outstanding;
(vii) Indebtedness of any Person that is merged or consolidated with and into the China JV Borrower or any Subsidiary (other than a Broker Dealer Subsidiary) or of any Person that otherwise becomes a Subsidiary (other than a Broker Dealer Subsidiary) after the date hereof, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium payable by the terms of such Indebtedness thereon), provided that the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $10,000,000 at any time outstanding;
(viii) other unsecured Indebtedness of the Borrower and the Subsidiaries (other than the Broker Dealer Subsidiaries) in an aggregate principal amount not to exceed exceeding $20,000,000 at any time outstanding; , provided that such the aggregate principal amount of Indebtedness is (A) secured only by assets of the China JV and Subsidiaries that are not Subsidiary Loan Parties permitted by assets of Holdings, the Borrower of this clause (viii) shall not exceed $5,000,000 at any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiarytime outstanding;
(viiiix) unsecured reimbursement Indebtedness owed to any Person (including obligations (contingent or otherwise) in respect of letters of credit issued for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to support reimbursement or indemnification obligations of the Borrower or any Restricted Subsidiary to such Person, in each case incurred in the ordinary course of business; ;
(x) Indebtedness of the Borrower or any Subsidiary (other than any Broker Dealer Subsidiary) in respect of performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees and similar obligations (other than in respect of other Indebtedness), in each case provided that in the ordinary course of business;
(xi) Indebtedness in respect of Swap Agreements permitted by Section 6.07;
(xii) (A) the aggregate amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not at any time exceed $5,000,000 and (B) any disbursement in respect of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement Additional Subordinated Debt that is made; and
(ix) other Funded Indebtedness if, issued for cash payable on the date of issuance thereof or as consideration for a Permitted Acquisition, provided that (1) if such Additional Subordinated Debt is issued for cash, the creation, issuance, incurrence or assumption Net Proceeds of such Indebtedness (orAdditional Subordinated Debt are used, in promptly after such Net Proceeds are received by the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral)Borrower, (x) the Leverage Ratio is less than 4.00 to 1.00 and consummate one or more Permitted Acquisitions or (y) to prepay Term Loans pursuant to Section 2.11(a), (2) no Default has occurred and is continuing or would result therefrom and (3) the Borrower is in compliance on a Pro Forma Basis after giving effect to the incurrence of such Additional Subordinated Debt with the covenants contained in Sections 6.12 and 6.13 recomputed as of the last day of the most-recently ended fiscal quarter of the Borrower prior to the issuance of such Additional Subordinated Debt and has delivered to the Administrative Agent a certificate of a Financial Officer to such effect, together with all relevant financial information reasonably requested by the Administrative Agent, including reasonably detailed calculations demonstrating compliance with clause (3) above (which calculations shall, if such Indebtedness is Secured Funded Indebtedness, made as of the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for last day of any fiscal quarter of the most recent period of four fiscal quarters Borrower for which the Borrower has not delivered to the Administrative Agent the financial statements have been and certificate of a Financial Officer required to be delivered pursuant to by Section 5.01(a) or (b) and Section 5.01(c), as applicablerespectively, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicableaccompanied by a reasonably detailed calculation of Consolidated EBITDA and Consolidated Cash Interest Expense for the relevant period) and all (B) Subordinated Refinancing Indebtedness in respect of Additional Subordinated Debt issued pursuant to be prepaid with clause (A) above or this clause (B);
(xiii) Indebtedness arising from the proceeds honoring by a bank or financial institution of a check or similar instrument drawn against insufficient funds in the ordinary course of business, so long as such Funded Indebtedness on is repaid within five Business Days; and
(xiv) Indebtedness of TRF owing to Borrower or within 10 days after such dateanother Subsidiary not to exceed $10,000,000 at any time outstanding.
(b) Holdings The Borrower will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower willnot, nor will they it permit any Restricted Subsidiary to, issue any preferred stock Equity Interests or other any Disqualified Equity Interests, except in the case of the Borrower, (i) preferred Equity Interests that are Qualified Equity Interests, (ii) preferred Equity Interests issued and outstanding on the Effective Date and set forth on Schedule 6.01(b), (iii) preferred Equity Interests (including any Disqualified x) having terms that, taken as a whole, are no less favorable to the Lenders than those of the Series C Preferred Stock), except that as determined in good faith by senior management of the Borrower, (iy) Holdings may issue preferred stock the proceeds of which are used to redeem, repurchase or other preferred Equity Interests retire the outstanding shares of Holdings that are not Disqualified Series C Preferred Stock and Disqualified (z) the aggregate liquidation preference of which is no greater than that of the shares of Series C Preferred Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings being redeemed, repurchased or refinanced and (iiiv) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted SubsidiarySeries D Preferred Stock.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Each of Holdings and the Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term Loans, other than any Incremental Term Loans, and Letters of CreditIndebtedness created under the Loan Documents;
(ii) Indebtedness existing on the Restatement Effective Date and set forth in Schedule 6.01 and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than by the amount of any fees or expenses incurred in the refinancing thereof) or result in an earlier maturity date or decreased weighted average life thereof;
(iii) Indebtedness of the Borrower to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings Borrower or any other Restricted Subsidiary, in each case ; PROVIDED that Indebtedness of any Subsidiary that is not a Loan Party to any Loan Party shall be subject to Section 6.04;
(iv) Guarantees by (A) Holdings of Indebtedness of the Borrower or any Subsidiary, (B) the Borrower of Indebtedness of any Subsidiary and by (C) any Restricted Subsidiary of Indebtedness of Holdings, the Borrower or any other Subsidiary, provided ; PROVIDED that such Guarantees are permitted by any Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 6.04;
(v) Indebtedness of the Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vi) 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 (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof; PROVIDED that (A) such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement and (B) the aggregate principal amount of Indebtedness permitted by this clause (v) shall not exceed $2,500,000 or, following the Cremascoli Acquisition, $4,000,000 at any time outstanding, and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof;
(vi) Indebtedness of any Person that becomes a Subsidiary after the Effective Date; provided PROVIDED that (A) such Indebtedness exists at the time such Person becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary and (B) the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $25,000,000 2,500,000 or, following the Cremascoli Acquisition, $6,500,000 at any time outstanding, and extensions, renewals and replacements of any such Indebtedness that do not increase the principal amount thereof;
(vii) Investor Subordinated Debt in an aggregate principal amount of up to $30,000,000 or following the Cremascoli Acquisition, $45,000,000;
(viii) on and prior to the Term Funding Date, the WMT Existing Notes;
(ix) following the Cremascoli Acquisition, Indebtedness of the China JV Italian Receivables Subsidiary in connection with the Italian Receivables Program not to exceed $6,000,000.
(x) other unsecured Indebtedness in an aggregate principal amount not to exceed exceeding $20,000,000 2,000,000 or, following the Cremascoli Acquisition, $3,000,000 at any time outstanding; provided that such Indebtedness is (A) secured only by assets of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
(viii) unsecured reimbursement obligations (contingent or otherwise) in respect of letters of credit issued to support obligations of the Borrower or any Restricted Subsidiary incurred in the ordinary course of business; provided that (A) the aggregate amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not at any time exceed $5,000,000 and (B) any disbursement in respect of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement is made; and
(ix) other Funded Indebtedness if, on the date of the creation, issuance, incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such date.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under Redeemable Preferred Stock; PROVIDED that Holdings may issue Redeemable Preferred Stock to the Loan Documentsextent such preferred stock, (ii) Indebtedness permitted under clause (a)(iii) for the purposes of this Section 6.01 and (iii) Guarantees permitted by Holdings of 6.01(a), is deemed to be Indebtedness of Holdings with an aggregate principal amount equal to the Borrower and the Restricted Subsidiaries permitted herebystated value thereof.
(c) Neither Holdings nor the The Borrower willwill not, nor and will they not permit any Restricted Subsidiary to, issue any preferred stock or be or become liable in respect of any obligation (contingent or otherwise) to purchase, redeem, retire, acquire or make any other preferred Equity Interests payment (including other than dividends permitted under Section 6.07) in respect of any Disqualified Stock), except that (i) Holdings may issue preferred shares of capital stock or other preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying or any option, warrant or other right to acquire any such shares or shares required by applicable law to be held by a Person other than Holdingsof capital stock; PROVIDED, HOWEVER, that nothing in this Section 6.01(c) shall prevent (i) the Borrower or any Restricted Subsidiary.
(d) Neither Holdings nor Subsidiary from acquiring the Borrower will permit the Bermuda IP equity securities of any Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that not owned by it if such purchase is otherwise permitted by this Agreement and Agreement, (ii) any Subsidiary from issuing preferred stock to the Borrower or the Borrower from issuing preferred stock (other than Redeemable Preferred Stock) to Holdings, so long as such preferred stock is pledged as Collateralto the Collateral Agent to secure the Obligations, to the extent required by the Loan Documents, or (iii) any Subsidiary from issuing preferred stock to any third party; PROVIDED that for purposes of Section 6.01(a), such preferred stock shall be deemed to be Indebtedness of such Subsidiary with an aggregate principal amount equal to the stated value thereof.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Borrower No Credit Agreement Party will, nor will not, and Holdings and the Borrower will not it permit any Restricted Subsidiary of its Subsidiaries to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term Loans, other than any Incremental Term Loans, and Letters of CreditIndebtedness created under the Credit Documents;
(ii) unsecured Indebtedness of the U.S Borrower incurred under the Senior Notes and the Senior Notes Indenture and of the U.S. Subsidiary Guarantors (so long as same remain U.S. Subsidiary Guarantors) and Holdings under Guarantees of the Obligations of the U.S. Borrower provided under the Senior Notes Documents to which they are a party, in an aggregate principal amount not to exceed U.S.$200,000,000 (less the amount of any repayments of principal thereof after the Initial Borrowing Date);
(iii) unsecured Indebtedness of the U.S Borrower incurred under the Senior Subordinated Notes and the Senior Subordinated Notes Indenture and of the U.S. Subsidiary Guarantors (so long as same remain U.S. Subsidiary Guarantors) and Holdings under subordinated Guarantees of the Obligations of the U.S. Borrower provided under the Senior Subordinated Notes Documents to which they are a party, in an aggregate principal amount not to exceed U.S.$350,000,000 (less the amount of any repayments of principal thereof after the Initial Borrowing Date);
(iv) Third Party Scheduled Existing Indebtedness existing on the Restatement Effective Date and set forth in Schedule 6.01 V and extensions, renewals, refinancings renewals and replacements of any such Indebtedness, provided that such extending, renewal or replacement Indebtedness (A) shall not add guarantors, obligors or security from that do which applied to the Indebtedness being extended, renewed or replaced, (B) shall not increase the outstanding be in a principal amount thereof (other than by that exceeds the principal amount of any fees the Indebtedness being extended, renewed or expenses incurred in the refinancing thereofreplaced (plus accrued interest and premium thereon), (C) or result in shall not have an earlier maturity date or a decreased weighted average life thereof;
Weighted Average Life to Maturity than the Indebtedness being extended, renewed or replaced and (iiiD) Indebtedness shall be subordinated to the Obligations on the same terms (or, from the perspective of the Borrower to Holdings Lenders, better terms), if any, as the Indebtedness being extended, renewed or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings or any other Restricted Subsidiary, in each case subject to Section 6.04;
(iv) Guarantees by the Borrower and by any Restricted Subsidiary of Indebtedness of Holdings, the Borrower or any other Subsidiary, provided that such Guarantees are permitted by Section 6.04replaced;
(v) intercompany Indebtedness of by and among the Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds Borrowers and completion or other financial guarantees provided by the Borrower and the Restricted their Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect permitted pursuant to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrenceSection 10.04(e);
(vi) Guarantees (v) by any U.S. Credit Party (other than Holdings) of Indebtedness of any other U.S. Credit Party, (w) by any Canadian Credit Party of Indebtedness of any other Credit Party, (x) by any U.S. Credit Party (other than Holdings) of Indebtedness of any Foreign Subsidiary of the U.S. Borrower, (y) by any Canadian Credit Party of Indebtedness of any Foreign Subsidiary of the U.S. Borrower that is not a Canadian Credit Party and (z) by any Foreign Subsidiary of the U.S. Borrower (other than a Canadian Credit Party) of Indebtedness of the U.S. Borrower or any Restricted Subsidiary of the U.S. Borrower (other than Indebtedness pursuant to the Senior Notes Documents, the Senior Subordinated Notes Documents or the Additional Senior Subordinated Notes Documents), provided that, in each case, (1) the Indebtedness so Guaranteed is permitted by this Section 10.01 (other than Section 10.01(a)(iv)), (2) Guarantees permitted under this clause (vi) shall be subordinated to the Obligations of the U.S. Borrower or the applicable Subsidiary, as the case may be, on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations, (3) at no time shall the aggregate outstanding principal amount of all Indebtedness of Subsidiaries Guaranteed pursuant to subclause (x) of this clause (vi), when added to the aggregate principal amount of all intercompany loans made pursuant to (and in reliance on) Section 10.04(e)(x) and the aggregate amount of cash equity contributions made pursuant to (and in reliance on) Section 10.04(d)(x), exceed U.S.$60,000,000 (in each case, determined without regard to write-downs or write-offs thereof and, in the case of equity contributions, net of any returns of capital in the form of dividends or distributions actually received in cash in respect of any such Investments (which amount shall not exceed the amount of such Investment at the time such Investment was made)), (4) no Guarantees may be made or incurred pursuant to subclause (x) or (y) of this clause (vi) at any time any Default or any Event of Default is in existence (or would be in existence after giving effect thereto), and (5) at no time shall the aggregate outstanding principal amount of all Indebtedness of Subsidiaries Guaranteed pursuant to subclause (y) of this clause (vi), when added to the aggregate principal amount of all intercompany loans made pursuant to (and in -130- reliance on) Section 10.04(d)(x), exceed U.S.$60,000,000 (in each case, determined without regard to write-downs or write-offs thereof and, in the case of equity contributions, net of any returns of capital in the form of dividends or distributions actually received in cash in respect of any such Investments (which amount shall not exceed the amount of such Investment at the time such Investment was made)), (4) no Guarantees may be made or incurred pursuant to subclause (x) or (y) of this clause (vi) at any time any Default or any Event of Default is in existence (or would be in existence after giving effect thereto), and (5) at no time shall the aggregate outstanding principal amount of all Indebtedness of Subsidiaries Guaranteed pursuant to subclause (y) of this clause (vi), when added to the aggregate principal amount of all intercompany loans made pursuant to (and in reliance on) Section 10.04(e)(y) and the aggregate amount of cash equity contributions made pursuant to (and in reliance on) Section 10.04(d)(y) (exclusive of Investments made by a Canadian Credit Party directly with the proceeds of an Investment made by a U.S. Credit Party to such Canadian Credit Party in reliance on subclause (x) of Sections 10.04(d) and/or (e)), exceed U.S.$45,000,000 (in each case, determined without regard to write-downs or write-offs thereof);
(vii) Indebtedness of the U.S. Borrower or any of its Subsidiaries incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed by the U.S. Borrower or any of its Subsidiaries in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (plus accrued interest and premium in respect thereof; ), provided that (A) such Indebtedness 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 (vivii) shall not exceed $25,000,000 exceed, together with the Remaining Present Value of all leases permitted under Section 10.06, U.S.$50,000,000 at any time outstanding;
(viiA) Indebtedness of any Person that becomes a Subsidiary of the China JV U.S. Borrower after the Initial Borrowing Date, provided that (1) such Indebtedness exists at the time such Person becomes a Subsidiary of the U.S. Borrower and is not created in an contemplation of or in connection with such Person becoming a Subsidiary of the U.S. Borrower and (2) the aggregate principal amount of Indebtedness permitted by this clause (viii) shall not to exceed $20,000,000 U.S.$20,000,000 at any time outstanding; provided that such Indebtedness is (A) secured only by assets of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary outstanding and (B) any refinancings, renewals and replacements of any such Indebtedness pursuant to the preceding clause (A) that do not Guaranteed by Holdings, increase the Borrower or any other Restricted Subsidiaryoutstanding principal amount thereof (plus accrued interest and premium in respect thereof);
(viiiix) unsecured Indebtedness owed to any Person providing workers' compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations (contingent or otherwise) to such Person, in respect of letters of credit issued to support obligations of the Borrower or any Restricted Subsidiary each case incurred in the ordinary course of business; provided that (A) the aggregate amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not at any time exceed $5,000,000 and (B) any disbursement in respect of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement is made; and
(ix) other Funded Indebtedness if, on the date of the creation, issuance, incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such date.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock), except that (i) Holdings may issue preferred stock or other preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted Subsidiary.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.;
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, directly or indirectly, create, incur, assume or permit to exist (including by way of Guarantee) any Indebtedness, except:
(i) Term Loans, other than any Incremental Term Loans, Indebtedness incurred and Letters outstanding under the Loan Documents; Table of Credit;Contents
(ii) Indebtedness of the Borrower under the Constar Notes and the Constar Notes Indenture in a principal amount not to exceed $175 million;
(iii) Indebtedness existing on the Restatement Effective Date and set forth in Schedule 6.01 and extensions, renewals, refinancings refinancings, refundings and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than by the amount of any fees or expenses incurred in the refinancing thereof) or result in an earlier maturity date or decreased weighted average life thereofthereof and that are otherwise on terms and conditions pursuant to documentation satisfactory to the Administrative Agent;
(iiiiv) (x) Indebtedness of the Borrower to Holdings or any Restricted Subsidiary Loan Party and of any Restricted Subsidiary Loan Party to the Borrower, Holdings Borrower or any other Restricted Subsidiary Loan Party, or (y) Indebtedness of any Non-U.S. Subsidiary owed to another Non-U.S. Subsidiary, in each case subject to Section 6.04;
(ivv) Guarantees by the Borrower of Indebtedness of any Subsidiary Loan Party and by any Restricted Subsidiary Loan Party of Indebtedness of Holdings, the Borrower or any other SubsidiarySubsidiary Loan Party, in each case, to the extent such Indebtedness was permitted to be incurred hereunder, and if such Indebtedness is subordinated to the Obligations under the Loan Documents, such Guarantee is as subordinated in right of payment to the Obligations;
(vi) Indebtedness arising from the honoring by a bank or other financial institution of a check draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided that such Guarantees are permitted by Section 6.04Indebtedness is extinguished within two Business Days of its incurrence;
(vvii) Indebtedness of the Borrower constituting Permitted Subordinated Indebtedness; provided that (x) no Default or Event of Default shall have occurred or be continuing or would result therefrom and (y) after giving effect to the incurrence of such Indebtedness (and any other Indebtedness incurred since the last day of the immediately preceding Test Period) on a pro forma basis as if it was incurred on the first day of the immediately preceding Test Period (but tested as if the applicable ratio were the ratio for the next succeeding Test Period), the Borrower would be in compliance with Sections 6.14 through 6.17, inclusive;
(viii) Indebtedness of Non-U.S. Subsidiaries in an aggregate principal amount outstanding at any time not in excess of $20.0 million; provided that (x) no Default or Event of Default shall have occurred or be continuing or would result therefrom and (y) after giving effect to the incurrence of such Indebtedness (and any other Indebtedness incurred since the last day of the immediately preceding Test Period) on a pro forma basis as if it was incurred on the first day of the immediately preceding Test Period (but tested as if the applicable ratio were the ratio for the next succeeding Table of Contents Test Period), the Borrower would be in compliance with Sections 6.14 through 6.17, inclusive;
(ix) Indebtedness of any Non-U.S. Subsidiary to the Borrower or any Subsidiary Loan Party in an aggregate principal amount outstanding at any time not in excess of $20.0 million; provided that any such Indebtedness shall be evidenced by a promissory note which shall be in form and substance satisfactory to the Administrative Agent and which shall be pledged pursuant to the Pledge Agreement (so long as such pledge would not result in adverse tax consequences to the Borrower or the applicable Subsidiary);
(x) Indebtedness of the Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vi) 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 (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof or result in an earlier maturity date or decreased weighted average life thereof; provided that (A) such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement and (B) the aggregate principal amount of Indebtedness permitted by this clause (vix) shall not exceed $25,000,000 10.0 million at any time outstanding;
(viixi) Indebtedness Hedging Agreements to the extent required by Section 5.15 and other Hedging Agreements entered into in the ordinary course of the China JV in an aggregate principal amount not to exceed $20,000,000 at any time outstanding; provided that such Indebtedness is (A) secured only by assets of the China JV business and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiaryfor speculative purposes;
(viiixii) unsecured reimbursement Indebtedness owed to (including obligations (contingent or otherwise) in respect of letters of credit issued for the benefit of) any Person providing worker’s compensation, health, disability or other employee benefits or property, casualty or liability insurance to support the Borrower or any Subsidiary of the Borrower, pursuant to reimbursement or indemnification obligations to such person;
(xiii) Indebtedness of the Borrower or its Subsidiaries in respect of performance bonds, bid bonds, appeal bonds, surety bonds and similar obligations and trade-related letters of credit, in each case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(xiv) Indebtedness arising from agreements of the Borrower or a Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the disposition of any Restricted business, assets or a Subsidiary, other than Guarantees of Indebtedness incurred by Table of Contents any Person acquiring all or any portion of such business, assets or a Subsidiary incurred for the purpose of financing such acquisition;
(xv) obligations in respect of performance and surety bonds and completion guarantees provided by the Borrower and its Subsidiaries in the ordinary course of business; provided that and
(Axvi) other Indebtedness of the Borrower in an aggregate principal amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not exceeding $10.0 million at any time exceed $5,000,000 and (B) any disbursement in respect of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement is made; and
(ix) other Funded Indebtedness if, on the date of the creation, issuance, incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such dateoutstanding.
(b) Holdings The Borrower will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower willnot, nor will they it permit any Restricted Subsidiary to, directly or indirectly, issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock), except that Interest which (i) Holdings matures or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise prior to one year after the Term B Loan Maturity Date, (ii) is or may issue become redeemable or repurchaseable at the option of the holder thereof, in whole or in part, prior to one year after the Term B Loan Maturity Date or (iii) is convertible or exchangeable at the option of the holder thereof for Indebtedness or preferred stock or any other preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of Interest described in this Section 6.01 as if such clause applied paragraph prior to Holdings and (ii) Holdings, one year after the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted SubsidiaryTerm B Maturity Date.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term Loans, other than any Incremental Term Loans, and Letters of CreditIndebtedness created under the Loan Documents;
(ii) the Subordinated Debt;
(iii) the Junior Subordinated Note;
(iv) Indebtedness existing on the Restatement Effective Date and set forth in Schedule 6.01 and extensions, renewals, refinancings and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than by the amount of any fees or expenses incurred in the refinancing thereof) or result in an earlier maturity date or decreased weighted average life thereof;
(iiiv) Indebtedness of the Borrower to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings or any other Restricted Subsidiary, in each case subject to Section 6.04;
(ivvi) Guarantees by the Borrower and by any Restricted Subsidiary of Indebtedness of Holdings, the Borrower or any other Subsidiary, provided that such Guarantees are permitted by the Borrower or any Subsidiary Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 6.04;
(vvii) Indebtedness of the Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vi) 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 (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof; , provided that the aggregate principal amount of Indebtedness permitted by this clause (vivii) shall not exceed $25,000,000 at any time outstanding;
(viiviii) Indebtedness of the China JV in an aggregate principal amount not to exceed $20,000,000 at any time outstanding; provided that such Indebtedness is (A) secured only by assets of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
(viii) unsecured reimbursement obligations (contingent or otherwise) in respect of letters of credit issued to support obligations of the Borrower or any Restricted Subsidiary incurred in respect of workers' compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion guarantees provided by the Borrower and the Subsidiaries in the ordinary course of their business; , provided that (A) upon the aggregate amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not at any time exceed $5,000,000 and (B) any disbursement in respect of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement is made; and
(ix) other Funded Indebtedness if, on the date of the creation, issuance, incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such date.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower willwith respect to reimbursement type obligations regarding workers' compensation claims, nor will they permit any Restricted Subsidiary to, issue any preferred stock such obligations are reimbursed within 30 days following such drawing or other preferred Equity Interests (including any Disqualified Stock), except that (i) Holdings may issue preferred stock or other preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted Subsidiary.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.incurrence;
Appears in 1 contract
Samples: Amendment and Restatement Agreement (On Semiconductor Corp)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term Loans(x) Indebtedness created under the Loan Documents, other than any Incremental Term Loans(y) Indebtedness created under the Tranche B Loan Documents not to exceed an aggregate principal amount of $1,225,000,000 and (z) Indebtedness created under the Bridge Loan Documents not to exceed an aggregate principal amount of $1,750,000,000 (and, and Letters of Creditwithout duplication, Permitted Bridge Refinancings thereof);
(ii) (A) the Convertible Notes and (B) Subordinated Refinancing Indebtedness in respect of the Convertible Notes or Additional Subordinated Debt incurred pursuant to this clause (B);
(iii) Indebtedness existing on the Restatement Effective Date date hereof and set forth in Schedule 6.01 (other than the Existing Credit Agreement and the Existing Tranche C Credit Agreement) and refinancings, extensions, renewals, refinancings renewals and replacements of any such Indebtedness, provided that such refinancing, extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that do was not increase an obligor with respect to the outstanding Indebtedness being refinanced, extended, renewed or replaced, (B) shall not be in a principal amount thereof that exceeds the principal amount of the Indebtedness being refinanced, extended, renewed or replaced (other than plus any accrued but unpaid interest and premium or penalty payable by the amount terms of any such Indebtedness thereon and reasonable fees or and expenses incurred in the refinancing thereofassociated therewith), (C) or result in shall not have an earlier maturity date or decreased shorter weighted average life thereofthan the Indebtedness being refinanced, extended, renewed or replaced and (D) if the Indebtedness being refinanced, extended, renewed or replaced is subordinated to the Obligations, such Indebtedness shall be subordinated to the Obligations on the same terms as the Indebtedness being refinanced, extended, renewed or replaced;
(iiiiv) Indebtedness of the Borrower to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings Borrower or any other Restricted SubsidiarySubsidiary (other than Indebtedness of any Broker Dealer Subsidiary or the RIE to a Subsidiary that is not a Loan Party), in each case provided that (A) Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary Loan Party shall be subject to Section 6.04, (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary Loan Party to any Subsidiary that is not a Subsidiary Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent and (C) Indebtedness of the Additional Borrower to Borrower shall be pursuant to one or more intercompany loans or notes (collectively, the “Additional Borrower Intercompany Loan”) reasonably satisfactory to the Administrative Agent and pledged as Collateral under the Security Documents;
(ivv) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Restricted Subsidiary (other than any Broker Dealer Subsidiary or the RIE) of Indebtedness of Holdings, the Borrower or any other Subsidiary, provided that such Guarantees are (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(iii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 6.04, (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations, (D) none of the Convertible Notes or Additional Subordinated Debt shall be Guaranteed by any Subsidiary, unless, in the case of any Additional Subordinated Debt, such Subsidiary is a Loan Party that has Guaranteed the Obligations pursuant to the Collateral Agreement and (E) any Guarantee by the Borrower of the Convertible Notes (the “Parent Convertible Note Guarantee”) shall be subordinated to the Obligations to the same extent and or the same terms as the Parent Convertible Note Guarantee is subordinated to the Obligations on and as of the Effective Date;
(vA) Indebtedness of the Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal (other than any Broker Dealer Subsidiary or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(viRIE) 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 (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) 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, provided that such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, and (B) extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase so long as the outstanding principal amount thereof; of such refinancings, extensions, renewals and replacements does not exceed the principal amount of the Indebtedness being refinanced, extended, renewed or replaced (plus any accrued but unpaid interest and premium or penalty payable by the terms of such Indebtedness thereon and reasonable fees and expenses associated therewith), provided that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $25,000,000 20,000,000 at any time outstanding;
(vii) Indebtedness of any Person that is merged or consolidated with and into the China JV Borrower or any Subsidiary (excluding the Liberty Group) (other than a Broker Dealer Subsidiary or the RIE) or of any Person that otherwise becomes a Subsidiary (other than a Broker Dealer Subsidiary) after the date hereof, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and is not created in an contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium payable by the terms of such Indebtedness thereon), provided that the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not to exceed $20,000,000 at any time outstanding; provided that such Indebtedness is (A) secured only by assets of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
(viii) other unsecured reimbursement Indebtedness of the Borrower and the Subsidiaries (other than Indebtedness of the Broker Dealer Subsidiaries or the RIE) in an aggregate principal amount not exceeding $20,000,000 at any time outstanding, provided that the aggregate principal amount of Indebtedness of the Subsidiaries that are not Subsidiary Loan Parties permitted by this clause (viii) shall not exceed $5,000,000 at any time outstanding;
(ix) Indebtedness owed to any Person (including obligations (contingent or otherwise) in respect of letters of credit issued for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to support reimbursement or indemnification obligations of the Borrower or any Restricted Subsidiary to such Person, in each case incurred in the ordinary course of business; ;
(x) Indebtedness of the Borrower or any Subsidiary (other than any Broker Dealer Subsidiary or the RIE) in respect of performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees and similar obligations (other than in respect of other Indebtedness), in each case provided that in the ordinary course of business;
(xi) Indebtedness in respect of Swap Agreements permitted by Section 6.07;
(xii) (A) the aggregate amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not at any time exceed $5,000,000 and (B) any disbursement in respect of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement Additional Subordinated Debt that is made; and
(ix) other Funded Indebtedness if, issued for cash payable on the date of issuance thereof or as consideration for a Permitted Acquisition, provided that (1) if such Additional Subordinated Debt is issued for cash, the creation, issuance, incurrence or assumption Net Proceeds of such Indebtedness (orAdditional Subordinated Debt are used, in promptly after such Net Proceeds are received by the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral)Borrower, (x) the Leverage Ratio is less than 4.00 to 1.00 and consummate one or more Permitted Acquisitions or (y) to prepay Term Loans pursuant to Section 2.11(a) (applied as if the incurrence of such Indebtedness had been a Prepayment Event), (2) no Default has occurred and is Secured Funded Indebtednesscontinuing or would result therefrom and (3) the Borrower is in compliance after giving effect to the incurrence of such Additional Subordinated Debt with the covenants contained in Sections 6.12 and 6.13 recomputed as of the last day of the most-recently ended fiscal quarter of the Borrower prior to the issuance of such Additional Subordinated Debt and has delivered to the Administrative Agent a certificate of a Financial Officer to such effect, together with all relevant financial information reasonably requested by the Secured Leverage Ratio is less than 2.5 to 1.0Administrative Agent, in each case calculated based on Consolidated EBITDA for including reasonably detailed calculations demonstrating compliance with clause (3) above (which calculations shall, if made as of the most recent period last day of four any fiscal quarters quarter of the Borrower for which the Borrower has not delivered to the Administrative Agent the financial statements have been and certificate of a Financial Officer required to be delivered pursuant to by Section 5.01(a) or (b) and Section 5.01(c), as applicablerespectively, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicableaccompanied by a reasonably detailed calculation of Consolidated EBITDA and Consolidated Cash Interest Expense for the relevant period) and all (B) Subordinated Refinancing Indebtedness in respect of Additional Subordinated Debt issued pursuant to be prepaid with the proceeds of such Funded Indebtedness on clause (A) above or within 10 days after such date.this clause (B);
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (ixiii) Indebtedness created under arising from the Loan Documentshonoring by a bank or financial institution of a check or similar instrument drawn against insufficient funds in the ordinary course of business, so long as such Indebtedness is repaid within five Business Days;
(iixiv) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock), except that (i) Holdings may issue preferred stock or other preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied TRF owing to Holdings and (ii) Holdings, the Borrower or another Subsidiary not to exceed $10,000,000 at any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted Subsidiary.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.time outstanding;
Appears in 1 contract
Samples: Term Loan Credit Agreement (Nasdaq Stock Market Inc)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, any Attributable Debt in respect of any Sale and Leaseback Transaction or any Third Party Interests except:
(i) Term Loans, other than Indebtedness under the Senior Loan Documents (including any Incremental Term Loans, Refinancing Amendment executed in accordance with Section 6.01(c)) and Letters Refinancing Indebtedness (including (A) Refinancing Indebtedness in respect of CreditRevolving Commitments or Other Revolving Commitments and (B) Refinancing Indebtedness consisting of Permitted First Priority Debt) in respect thereof;
(ii) unsecured Indebtedness existing on of the Restatement Effective Date Borrower that is not Guaranteed by any Subsidiary, that does not mature or require scheduled payments of principal prior to the date that is 90 days after the Tranche 2/Tranche 3 Term Maturity Date, and set forth that has covenants and events of default which are determined in Schedule 6.01 and extensions, renewals, refinancings and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than good faith by the amount senior management of any fees or expenses incurred the Borrower to be on market terms, and Refinancing Indebtedness issued in the refinancing thereof) or result in an earlier maturity date or decreased weighted average life thereofrespect of such Indebtedness;
(iii) Indebtedness of the Borrower to Holdings or any Restricted Subsidiary and the Subsidiaries in respect of any Restricted Subsidiary intercompany Investments permitted under Section 6.04; provided that such Indebtedness is subordinated to the Borrower, Holdings or any other Restricted Subsidiary, in each case subject Senior Loan Obligations pursuant to Section 6.04terms substantially the same as those forth on Annex 2 hereto;
(iv) Guarantees by the Borrower and by any Restricted Subsidiary of Indebtedness of Holdings, the Borrower or any other Subsidiary, provided that such Guarantees are permitted by Section 6.04Existing Non-Guaranteed Indebtedness;
(v) Indebtedness of the Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrenceExisting Second Priority Debt;
(vi) Indebtedness of Existing Guaranteed Unsecured Indebtedness;
(vii) Permitted Second Priority Debt incurred after the Borrower or any Restricted Subsidiary incurred to finance the acquisitionSecond Restatement Effective Date in an aggregate principal amount, construction or improvement of any fixed or capital assets, including Capital Lease Obligations (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection together with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings and replacements of any such Indebtedness that do not increase the outstanding aggregate principal amount thereofof Indebtedness incurred pursuant to clause (viii) of this Section 6.01(a), not in excess of $1,500,000,000 at any time outstanding; provided that the aggregate principal amount of Indebtedness permitted by Permitted Second Priority Debt incurred under this clause which matures or requires scheduled payments of principal prior to the date that is 90 days after the Tranche 2/Tranche 3 Term Maturity Date, together with the aggregate principal amount of any Permitted Unsecured Indebtedness incurred under clause (viviii) of this Section 6.01(a) which matures or requires scheduled payments of principal prior to the date that is 90 days after the Tranche 2/Tranche 3 Term Maturity Date, shall not exceed $25,000,000 750,000,000 at any time outstanding;
(viiviii) Permitted Unsecured Indebtedness of incurred after the China JV Second Restatement Effective Date in an aggregate principal amount, together with the aggregate principal amount of Indebtedness incurred pursuant to clause (vii) of this Section 6.01(a), not to exceed in excess of $20,000,000 1,500,000,000 at any time outstanding; provided that the aggregate principal amount of Permitted Unsecured Indebtedness incurred under this clause which matures or requires scheduled payments of principal prior to the date that is 90 days after the Tranche 2/Tranche 3 Term Maturity Date, together with the aggregate principal amount of any Permitted Second Priority Debt incurred under clause (vii) of this Section 6.01(a) which matures or requires schedule payments of principal prior to the date that is 90 days after the Tranche 2/Tranche 3 Term Maturity Date, shall not exceed $750,000,000 at any time outstanding;
(ix) Indebtedness secured by Liens on real property or Attributable Debt incurred in connection with Sale and Leaseback Transactions involving real property; provided that any such Indebtedness, or any such lease entered into in connection with the Sale and Leaseback Transaction giving rise to such Attributable Debt, shall have a maturity date or termination date, as the case may be, after the date that is 90 days after the Tranche 2/Tranche 3 Term Maturity Date; and provided further that the aggregate principal amount of Indebtedness and Attributable Debt incurred pursuant to this clause (ix) shall not exceed $600,000,000 at any time outstanding;
(x) Refinancing Indebtedness issued in respect of Indebtedness or Attributable Debt permitted under this clause (x) and clauses (iv), (v), (vi), (xv) and (xviii);
(xi) endorsements of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;
(xii) Indebtedness for borrowed money and Capital Lease Obligations existing on the Second Restatement Effective Date (other than Second Priority Debt and Indebtedness referred to in clauses (ii), (iv), (v) and (vi) above) and set forth on Schedule 6.01(a)(xii), but not any extensions, renewals, refinancings or replacements of such Indebtedness;
(xiii) Capital Lease Obligations with respect to leases existing on the Second Restatement Effective Date that were accounted for as operating leases on the Original Restatement Effective Date and thereafter reclassified as Capital Lease Obligations;
(xiv) Indebtedness (including Capital Lease Obligations) and Attributable Debt in respect of Sale and Leaseback Transactions in respect of equipment financing or leasing in the ordinary course of business of the Borrower and the Subsidiaries consistent with past practices;
(xv) purchase money Indebtedness (including Capital Lease Obligations) and Attributable Debt in respect of Sale and Leaseback Transactions in each case incurred to finance the acquisition, development, construction or opening of any Store after the Second Restatement Effective Date; provided that such Indebtedness is or Attributable Debt (A) secured only by assets is incurred not later than 24 months following the completion of the China JV and not by assets acquisition, development, construction or opening of Holdingssuch Store, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed any Lien securing such Indebtedness or Attributable Debt is limited to the Store financed with the proceeds thereof, and (C) is incurred in connection with a transaction that is substantially consistent with the business plan of the Borrower provided to the Lenders prior to the Second Restatement Effective Date;
(xvi) (A) Third Party Interests issued by HoldingsSecuritization Vehicles in Securitizations permitted by Section 6.05, and Indebtedness represented by such Third Party Interests, (B) Indebtedness of the Borrower or its Subsidiaries that may be deemed to exist solely by virtue of a Factoring Transaction permitted by this Agreement and (C) Securitization Refinancing Indebtedness in respect of any other Restricted SubsidiaryThird Party Interests or Indebtedness permitted by clause (A) above; provided that the aggregate amount of all Securitizations plus the aggregate amount of Indebtedness permitted by clauses (B) and (C) shall not exceed $950,000,000 at any time outstanding;
(xvii) Indebtedness of Subsidiaries other than Securitization Vehicles that may be deemed to exist solely by virtue of Standard Securitization Undertakings entered into by such Subsidiaries as sellers of Securitization Assets in Securitizations permitted by paragraph (xvi) above;
(xviii) Indebtedness under the New Notes, in an aggregate principal amount not in excess of the amount equal to $1,220,000,000, and Guarantees by Subsidiaries of such Indebtedness (and Refinancing Indebtedness of such Indebtedness);
(xix) Guarantees by Subsidiaries of the Existing Second Priority Debt (and Refinancing Indebtedness of Existing Second Priority Debt), the Existing Guaranteed Unsecured Indebtedness (and Refinancing Indebtedness of Existing Guaranteed Unsecured Indebtedness) and any Indebtedness under clause (vii) or (viii) unsecured reimbursement obligations of this Section 6.01(a); and
(contingent or otherwisexx) Indebtedness of Holdings in respect of letters of credit issued assumed in connection with the Acquisition in an aggregate principal amount not in excess of (A) $75,000,000 at any time outstanding prior to support obligations any date that is 60 days after the Second Restatement Effective Date and (B) $10,000,000 at any time outstanding on or after any date that is 60 days after the Second Restatement Effective Date but prior to 120 days after the Second Restatement Effective Date.
(b) The Borrower will not, nor will it permit any Subsidiary to, issue any Preferred Stock or other preferred Equity Interests, other than Qualified Preferred Stock of the Borrower, Third Party Interests issued by Securitization Vehicles, and other preferred Equity Interests issued and outstanding on the Second Restatement Effective Date and set forth on Schedule 6.01(b).
(c) At any time after the 2009 Restatement Effective Date, the Borrower may obtain from any Lender or Additional Lender Refinancing Indebtedness in respect of any Indebtedness outstanding under this Agreement or any Restricted Subsidiary incurred outstanding Revolving Commitments or Other Revolving Commitments, in the ordinary course form of businessOther Term Loans, Other Term Commitments, Other Revolving Loans or Other Revolving Commitments (or, if all then outstanding Revolving Commitments are to be replaced at such time, in the form of new Revolving Commitments), in each case pursuant to a Refinancing Amendment; provided that (i) such Refinancing Indebtedness (A) will rank pari passu in right of payment and of security (but without regard to control of remedies) with the aggregate amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not at any time exceed $5,000,000 and other Loans, (B) any disbursement if such Refinancing Indebtedness is a term loan, amortize in respect of any a manner, and be subject to mandatory prepayments (if any) on terms, reasonably acceptable to the Administrative Agent, (C) have such letter of credit pricing (other than interest rate, which shall be reimbursed comply with the requirements set forth in full within three Business Days after such disbursement is made; and
(ix) other Funded Indebtedness if, on the date definition of the creation, issuance, incurrence or assumption of such Indebtedness term “Refinancing Indebtedness”) as may be agreed by the Borrower and the Administrative Agent and (orD) otherwise be treated hereunder no more favorably than, in the case of Funded revolving facilities, the Revolving Loans and Revolving Commitments, and, in the case of term loans, the Tranche 2 Term Loans and the Tranche 3 Term Loans; provided that the terms and provisions applicable to such Refinancing Indebtedness may provide for additional or different financial or other covenants applicable only during periods after the Latest Maturity Date that becomes secured by collateral after is in effect on the date such Refinancing Indebtedness is created, issued, incurred or assumed, obtained. The effectiveness of any Refinancing Amendment shall be subject to the satisfaction on the date such Funded Indebtedness becomes secured by such collateral)thereof of each of the conditions set forth in Section 4.02. Any Refinancing Amendment may provide for the issuance of Letters of Credit for the account of the Borrower, (x) or the Leverage Ratio is less than 4.00 provision to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0Borrower of Swingline Loans, in each case calculated based on Consolidated EBITDA for terms substantially equivalent to the most recent period terms applicable to Letters of four fiscal quarters for which financial statements have been delivered Credit and Swingline Loans under the Revolving Commitments, pursuant to Section 5.01(a) or (b), any Other Revolving Commitments established thereby. The Administrative Agent shall promptly notify each Lender as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds effectiveness of such Funded Indebtedness on or within 10 days after such date.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness each Refinancing Amendment. Each of the Borrower parties hereto hereby agrees that, upon the effectiveness of any Refinancing Amendment, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, issue any preferred stock or other preferred Equity Interests Refinancing Indebtedness incurred pursuant thereto (including any Disqualified Stockamendments necessary to treat the Loans and Commitments subject thereto as Other Term Loans, Other Revolving Loans, Other Revolving Commitments and/or Other Term Commitments). Notwithstanding the foregoing, except that (ino Refinancing Amendment shall become effective under this Section 6.01(c) Holdings may issue preferred stock or other preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted unless the Administrative Agent, to the extent so reasonably requested by clause (a)(ixthe Administrative Agent, shall have received legal opinions, board resolutions and/or officers’ certificates consistent with those delivered on the 2008 Restatement Effective Date under Section 1.2(b) of this Section 6.01 as if such clause applied to Holdings the 2008 Amendment and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person Restatement Agreement other than Holdingschanges to such legal opinions resulting from a change in law, the Borrower change in fact or any Restricted Subsidiary.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary change to create, incur, assume or permit to exist any Indebtedness (regardless counsel’s form of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed opinion reasonably satisfactory to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as CollateralAdministrative Agent.
Appears in 1 contract
Samples: Credit Agreement (Rite Aid Corp)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary Loan Party to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term Loans, other than Indebtedness created under the Loan Documents (including Indebtedness under any Incremental Term Loans, and Letters of CreditFacilities incurred in compliance with Section 2.19);
(ii) Indebtedness existing on the Restatement Effective Date date hereof and set forth in Schedule 6.01 and extensions, renewals, replacements or refinancings and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than by the amount of any fees or expenses incurred in the refinancing thereof) or result in an earlier maturity date or decreased weighted average life thereof; provided that (A) the terms of any extension, renewal, replacement or refinancing shall be satisfactory to the Administrative Agent and (B) any Indebtedness in respect of any extension, renewal, replacement or refinancing of the 2008 Subordinated Notes shall be subordinate to the Obligations on terms no less favorable to the Lenders than the subordination provisions of the 2008 Subordinated Notes;
(iii) Indebtedness of the Borrower to Holdings or any Restricted Subsidiary Loan Party and of any Restricted Subsidiary Loan Party to the Borrower, Holdings Borrower or any other Restricted Subsidiary, in each case subject to Section 6.04Subsidiary Loan Party;
(iv) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Restricted Subsidiary Loan Party of Indebtedness of Holdings, the Borrower or any other Subsidiary, ; provided that such Guarantees are permitted by the Borrower or any Subsidiary Loan Party of Indebtedness of any Excluded Subsidiary shall be subject to Section 6.04;
(v) Indebtedness of the Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vi) Indebtedness of the Borrower or any Restricted Subsidiary Loan Party incurred to finance the acquisition, construction or improvement by it of any fixed or capital assets, including Capital Lease Obligations (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof or result in an earlier maturity date or decreased weighted average life thereof; provided that (A) such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement and (B) the aggregate principal amount of Indebtedness permitted by this clause (v) shall not exceed $25,000,000 at any time outstanding;
(vi) Indebtedness of any Person that becomes a Subsidiary Loan Party after the date hereof; provided that (A) such Indebtedness exists at the time such Person becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary and (B) the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $25,000,000 15,000,000 at any time outstanding;
(vii) Indebtedness of the China JV in an aggregate principal amount not to exceed $20,000,000 at any time outstanding; provided that such Indebtedness is (A) secured only by assets of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
(viii) unsecured reimbursement obligations (contingent or otherwise) in respect of letters of credit issued to support obligations the Subordinated Exchange Debentures or other Indebtedness of the Borrower or any Restricted Subsidiary incurred in to refinance the ordinary course outstanding shares of businessSeries A Preferred Stock; provided that (A) the aggregate principal amount of all such letters of credit and unreimbursed disbursements in respect thereof Indebtedness shall not at any time exceed $5,000,000 and the aggregate liquidation preference of the outstanding shares of Series A Preferred Stock being so refinanced, (B) any disbursement in respect of any such letter of credit Indebtedness shall be reimbursed subordinate to the Obligations on terms no less favorable to the Lenders than the subordination provisions set forth in full within three Business Days the Subordinated Exchange Debenture Indenture, (C) such Indebtedness shall mature on a date that is at least six months after such disbursement is made; and
the Tranche B Maturity Date, (ixD) other Funded Indebtedness if, on the date of the creation, issuance, incurrence or assumption terms of such Indebtedness shall be reasonably satisfactory to the Administrative Agent and (or, in E) no Default shall have occurred and be continuing or would result from the case incurrence of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is createdand the Borrower shall be in compliance, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined a pro forma basis after giving effect to such Funded Indebtedness to be createdincurrence, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds covenants contained in Sections 6.13, 6.14, 6.15 and 6.16 recomputed as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements are available as if such incurrence had occurred on the first day of such Funded Indebtedness on or within 10 days after such date.period; and
(bviii) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of other unsecured Indebtedness of the Borrower and the Restricted Subsidiaries permitted herebySubsidiary Loan Parties in an aggregate principal amount not exceeding $25,000,000 at any time outstanding.
(cb) Neither Holdings nor the The Borrower willwill not, nor will they it permit any Restricted Subsidiary Loan Party to, issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock)Interests, except that the Borrower may issue (i) Holdings may issue preferred stock or other preferred Equity Interests shares of Holdings that are not Disqualified Series A Preferred Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) pursuant to Section 3 of this Section 6.01 as if such clause applied to Holdings the Series A Preferred Certificate of Designation and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by other preferred Equity Interest that does not constitute a Person other than Holdings, the Borrower or any Restricted SubsidiaryDisqualified Equity Interest.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.
Appears in 1 contract
Samples: Credit Agreement (Cumulus Media Inc)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term Loans, other than any Incremental Term Loans, and Letters of CreditIndebtedness created under the Loan Documents;
(ii) (A) the Convertible Notes and (B) Subordinated Refinancing Indebtedness in respect of the Convertible Notes or Additional Subordinated Debt incurred pursuant to this clause (B);
(iii) Indebtedness existing on the Restatement Effective Date date hereof and set forth in Schedule 6.01 and refinancings, extensions, renewals, refinancings renewals and replacements of any such Indebtedness, provided that such refinancing, extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that do was not increase an obligor with respect to the outstanding Indebtedness being refinanced, extended, renewed or replaced, (B) shall not be in a principal amount thereof that exceeds the principal amount of the Indebtedness being refinanced, extended, renewed or replaced (other than plus any accrued but unpaid interest and premium or penalty payable by the amount terms of any such Indebtedness thereon and reasonable fees or and expenses incurred in the refinancing thereofassociated therewith), (C) or result in shall not have an earlier maturity date or decreased shorter weighted average life thereofthan the Indebtedness being refinanced, extended, renewed or replaced and (D) if the Indebtedness being refinanced, extended, renewed or replaced is subordinated to the Obligations, such Indebtedness shall be subordinated to the Obligations on the same terms as the Indebtedness being refinanced, extended, renewed or replaced;
(iiiiv) Indebtedness of the Borrower to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings Borrower or any other Restricted SubsidiarySubsidiary (other than Indebtedness of any Broker Dealer Subsidiary to a Subsidiary that is not a Loan Party), in each case provided that (A) Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary Loan Party shall be subject to Section 6.046.04 and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary Loan Party to any Subsidiary that is not a Subsidiary Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent;
(ivv) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Restricted Subsidiary (other than any Broker Dealer Subsidiary) of Indebtedness of Holdings, the Borrower or any other Subsidiary, provided that such Guarantees are (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(iii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 6.04, (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (D) none of the Convertible Notes or Additional Subordinated Debt shall be Guaranteed by any Subsidiary, unless, in the case of any Additional Subordinated Debt, such Subsidiary is a Loan Party that has Guaranteed the Obligations pursuant to the Collateral Agreement;
(vA) Indebtedness of the Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or (other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vithan any Broker Dealer Subsidiary) 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 (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) 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, provided that such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, and (B) extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase so long as the outstanding principal amount thereof; of such refinancings, extensions, renewals and replacements does not exceed the principal amount of the Indebtedness being refinanced, extended, renewed or replaced (plus any accrued but unpaid interest and premium or penalty payable by the terms of such Indebtedness thereon and reasonable fees and expenses associated therewith), provided that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $25,000,000 20,000,000 at any time outstanding;
(vii) Indebtedness of any Person that is merged or consolidated with and into the China JV Borrower or any Subsidiary (other than a Broker Dealer Subsidiary) or of any Person that otherwise becomes a Subsidiary (other than a Broker Dealer Subsidiary) after the date hereof, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium payable by the terms of such Indebtedness thereon), provided that the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $10,000,000 at any time outstanding;
(viii) other unsecured Indebtedness of the Borrower and the Subsidiaries (other than the Broker Dealer Subsidiaries) in an aggregate principal amount not to exceed exceeding $20,000,000 at any time outstanding; , provided that such the aggregate principal amount of Indebtedness is (A) secured only by assets of the China JV and Subsidiaries that are not Subsidiary Loan Parties permitted by assets of Holdings, the Borrower of this clause (viii) shall not exceed $5,000,000 at any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiarytime outstanding;
(viiiix) unsecured reimbursement Indebtedness owed to any Person (including obligations (contingent or otherwise) in respect of letters of credit issued for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to support reimbursement or indemnification obligations of the Borrower or any Restricted Subsidiary to such Person, in each case incurred in the ordinary course of business; ;
(x) Indebtedness of the Borrower or any Subsidiary (other than any Broker Dealer Subsidiary) in respect of performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees and similar obligations (other than in respect of other Indebtedness), in each case provided that in the ordinary course of business;
(xi) Indebtedness in respect of Swap Agreements permitted by Section 6.07;
(xii) (A) the aggregate amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not at any time exceed $5,000,000 and (B) any disbursement in respect of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement Additional Subordinated Debt that is made; and
(ix) other Funded Indebtedness if, issued for cash payable on the date of issuance thereof or as consideration for a Permitted Acquisition, provided that (1) if such Additional Subordinated Debt is issued for cash, the creation, issuance, incurrence or assumption Net Proceeds of such Indebtedness (orAdditional Subordinated Debt are used, in promptly after such Net Proceeds are received by the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral)Borrower, (x) the Leverage Ratio is less than 4.00 to 1.00 and consummate one or more Permitted Acquisitions or (y) to prepay Term Loans pursuant to Section 2.11(a), (2) no Default has occurred and is continuing or would result therefrom and (3) the Borrower is in compliance on a Pro Forma Basis after giving effect to the incurrence of such Additional Subordinated Debt with the covenants contained in Sections 6.12 and 6.13 recomputed as of the last day of the most-recently ended fiscal quarter of the Borrower prior to the issuance of such Additional Subordinated Debt and has delivered to the Administrative Agent a certificate of a Financial Officer to such effect, together with all relevant financial information reasonably requested by the Administrative Agent, including reasonably detailed calculations demonstrating compliance with clause (3) above (which calculations shall, if such Indebtedness is Secured Funded Indebtedness, made as of the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for last day of any fiscal quarter of the most recent period of four fiscal quarters Borrower for which the Borrower has not delivered to the Administrative Agent the financial statements have been and certificate of a Financial Officer required to be delivered pursuant to by Section 5.01(a) or (b) and Section 5.01(c), as applicablerespectively, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicableaccompanied by a reasonably detailed calculation of Consolidated EBITDA and Consolidated Cash Interest Expense for the relevant period) and all (B) Subordinated Refinancing Indebtedness in respect of Additional Subordinated Debt issued pursuant to be prepaid with clause (A) above or this clause (B); and
(xiii) Indebtedness arising from the proceeds honoring by a bank or financial institution of a check or similar instrument drawn against insufficient funds in the ordinary course of business, so long as such Funded Indebtedness on or is repaid within 10 days after such datefive Business Days.
(b) Holdings The Borrower will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower willnot, nor will they it permit any Restricted Subsidiary to, issue any preferred stock Equity Interests or other any Disqualified Equity Interests, except in the case of the Borrower, (i) preferred Equity Interests that are Qualified Equity Interests and (ii) preferred Equity Interests issued and outstanding on the Effective Date and set forth on Schedule 6.01(b), (iii) preferred Equity Interests (including any Disqualified x) having terms that, taken as a whole, are no less favorable to the Lenders than those of the Series C Preferred Stock), except that as determined in good faith by senior management of the Borrower, (iy) Holdings may issue preferred stock the proceeds of which are used to redeem, repurchase or other preferred Equity Interests retire the outstanding shares of Holdings that are not Disqualified Series C Preferred Stock and Disqualified (z) the aggregate liquidation preference of which is no greater than that of the shares of Series C Preferred Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings being redeemed, repurchased or refinanced and (iiiv) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted SubsidiarySeries D Preferred Stock.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Borrower Transaction Parties will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term Loans, other than any Incremental Term Loans, and Letters of CreditIndebtedness created under the Loan Documents;
(ii) Indebtedness existing on the Restatement Effective Date date hereof and set forth in Schedule 6.01 and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than by the amount of any fees or expenses incurred in the refinancing thereof) or result in an earlier maturity date or decreased weighted average life thereof, provided that the material terms of such extensions, renewals and replacements are at least as favorable to the Lenders as those of such Indebtedness;
(iii) Indebtedness of (a) any Loan Party that is not a Foreign Subsidiary to any other Loan Party that is not a Foreign Subsidiary (other than the Borrower or the Borrower Subsidiaries) and (b) the Borrower to Holdings or any Restricted Borrower Subsidiary and of any Restricted Borrower Subsidiary to the Borrower, Holdings Borrower or any other Restricted Borrower Subsidiary, in each case provided that Indebtedness of any Borrower Subsidiary that is not a Loan Party to the Borrower or any Subsidiary Loan Party shall be subject to Section 6.04;
(iv) Guarantees by the any Subsidiary Loan Party of Indebtedness of any Borrower Subsidiary and by any Restricted Borrower Subsidiary of Indebtedness of Holdings, the Borrower or any other such Borrower Subsidiary, provided that such Guarantees are permitted by the Borrower or any Subsidiary Loan Party of Indebtedness of any Borrower Subsidiary that is not a Loan Party shall be subject to Section 6.04;; 66 61
(v) Indebtedness of the Borrower Borrower, Hechinger, Hechinger East Coast, BSQ Newco, Hechinger Stores or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vi) 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 (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof or result in an earlier maturity date or decreased weighted average life thereof; , provided that (A) such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement and (B) the aggregate principal amount of Indebtedness permitted by this clause (v) shall not exceed $15,000,000 at any time outstanding;
(vi) Indebtedness of any Person that becomes a Borrower Subsidiary after the date hereof, provided that (A) such Indebtedness exists at the time such Person becomes a Borrower Subsidiary and is not created in contemplation of or in connection with such Person becoming a Borrower Subsidiary and (B) the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $25,000,000 5,000,000 at any time outstanding;
(vii) the BSQ Newco Note, BSQ Acqco/Holdings Note and BSQ Newco/Builders Square Note;
(viii) Indebtedness under Hedging Agreements entered into in accordance with Section 6.06;
(ix) Indebtedness incurred or assumed by Borrower in connection with the Hechinger Asset Acquisition, including the assumption by the Borrower of the reimbursement obligations in respect of Existing Letters of Credit under the Hechinger Stores Credit Facility and certain existing Indebtedness of Hechinger Stores and Hechinger East Coast;
(x) Indebtedness incurred in connection with the China JV Receivables Purchase Agreements;
(xi) Indebtedness incurred in connection with the Company Owned Life Insurance Program, provided that the aggregate principal amount of Indebtedness permitted by this clause (xi) shall not exceed $45,000,000 at any time outstanding;
(xii) the Existing Hechinger Public Indebtedness; and
(xiii) other unsecured Indebtedness in an aggregate principal amount not to exceed exceeding $20,000,000 10,000,000 at any time outstanding; , provided that such the aggregate principal amount of Indebtedness is (A) secured only by assets of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
(viii) unsecured reimbursement obligations (contingent or otherwise) in respect of letters of credit issued to support obligations of the Borrower or any Restricted Subsidiary incurred in the ordinary course of business; provided that Subsidiaries permitted by this clause (Axiii) the aggregate amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not exceed $2,000,000 at any time exceed $5,000,000 and (B) any disbursement in respect of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement is made; and
(ix) other Funded Indebtedness if, on the date of the creation, issuance, incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such dateoutstanding.
(b) Holdings will not createSubject to the provisions of Section 6.07, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness none of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower Transaction Parties will, nor will they permit any Restricted Subsidiary to, issue any preferred stock or other (except for preferred Equity Interests (including any Disqualified Stock), except that stock (i) Holdings may issue all dividends in respect of which are to be paid (and all other payments in respect of which are to be made) in additional shares of such preferred stock or other preferred Equity Interests 67 62 stock, in lieu of Holdings cash, until the date that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and is at least 360 days following the Maturity Date, (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law that is not subject to be held by a Person redemption other than Holdings, redemption at the Borrower or any Restricted Subsidiary.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness option of the Bermuda IP Subsidiary owed Transaction Party issuing such preferred stock and (iii) all payments in respect of which are expressly subordinated to the Borrower Obligations) or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateralbe or become liable in respect of any obligation (contingent or otherwise) to purchase, redeem, retire, acquire or make any other payment in respect of (i) any shares of capital stock of any member of the Holdings Group or (ii) any option, warrant or other right to acquire any such shares of capital stock.
Appears in 1 contract
Samples: Credit Agreement (Hechinger Co)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and Holdings and the Borrower nor will not it permit any Restricted Subsidiary of its Subsidiaries to, issue any Disqualified Capital Stock or create, incur, assume or permit to exist any Indebtedness, except:
(ia) Term Loans, other than any Incremental Term Loans, and Letters of CreditIndebtedness created under the Loan Documents;
(iib) Indebtedness existing on the Restatement Effective Date date hereof and set forth in Schedule 6.01 6.1 and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than by the amount of any fees or expenses incurred in the refinancing thereof) or result in an earlier maturity date or decreased weighted average life thereof;
(iiic) Indebtedness of the Borrower to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings or any other Restricted Subsidiary, in each case subject to Guarantees permitted under Section 6.046.4(c) and (d);
(ivd) Indebtedness among Loan Parties and Guarantees by the Borrower of Indebtedness and other obligations of any Loan Party made by any Restricted Subsidiary of Indebtedness of Holdings, the Borrower or any other Subsidiary, Loan Party; provided that such Indebtedness owed from Foreign Subsidiaries to the Loan Parties, and Guarantees are of the Indebtedness and other obligations of any Foreign Subsidiaries by any Loan Party shall not exceed the amounts permitted by Section 6.046.4(c);
(ve) Indebtedness of the Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted its Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vi) 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 (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof or result in an earlier maturity date or decreased weighted average life thereof; provided that (i) such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement and (ii) the aggregate principal amount of Indebtedness incurred in reliance on this clause (e) plus the Indebtedness listed on Schedule 6.1 incurred to finance the acquisition, construction or improvement of any fixed or capital assets shall not exceed $5,000,000 at any time outstanding;
(f) Indebtedness arising in connection with Hedging Transactions permitted by Section 6.7;
(g) to the extent constituting Indebtedness, customary indemnification and purchase price adjustments or similar obligations incurred in connection with acquisitions and dispositions of assets otherwise permitted hereunder;
(h) to the extent constituting Indebtedness, deferred compensation payable to directors, officers or employees of the Borrower and each of the Subsidiaries;
(i) cash management obligations and Indebtedness incurred by the Borrower or any of its Subsidiaries in respect of netting services, overdraft protections and similar arrangements, in each case entered into in the ordinary course of business in connection with cash management and deposit accounts and not involving the borrowing of money;
(j) obligations in respect of surety, stay, appeal and performance bonds, and similar obligations incurred by the Borrower or any of its Subsidiaries, in each case in the ordinary course of business;
(k) to the extent constituting Indebtedness, customary indemnification obligations incurred in the ordinary course of business;
(l) subordinated Indebtedness of the Borrower and its Subsidiaries which is subordinated in right of payment and all other respects to the Obligations on terms reasonably satisfactory to the Administrative Agent (all such Indebtedness, “Subordinated Indebtedness”) as long as:
(i) as of the date of the incurrence of such Indebtedness and immediately after giving effect thereto, no Default or Event of Default exists;
(ii) the terms of any such Indebtedness: (A) do not contain any covenants the violation of which would give the holders thereof the right to take action that could result in a Change of Control; (B) do not contain any provisions thereof which would make any Default or Event of Default hereunder (without further enforcement actions on the part of the Administrative Agent or any Lender) a default, event of default or violation thereunder; (C) do not require any repayment of principal prior to a date that is six months following the Revolving Commitment Termination Date; and (D) do not contain any other terms that are not reasonably satisfactory to the Administrative Agent; and
(iii) the Borrower shall have provided to Administrative Agent, prior to the incurrence of such Indebtedness: (A) notice thereof; (B) copies of the applicable loan documents and subordination agreements; (C) projected income and cash flow statements for the Borrower for the period through the Revolving Commitment Termination Date, prepared on a basis acceptable to the Administrative Agent, giving pro forma effect to the Indebtedness incurred; and (D) a certificate signed by a Responsible Officer of the Borrower certifying: (1) that the Leverage Ratio of the Borrower after giving effect to the incurrence of such proposed Indebtedness for the four (4) fiscal quarter period then most recently ending is not greater than (z) if such Fiscal Quarter is ending on or after September 30, 2010 and prior to December 31, 2012, 2.75 to 1.00; (y) if such Fiscal Quarter is ending on or after December 31, 2012 and prior to December 31, 2013, 2.50 to 1.00, and (x) if such Fiscal Quarter is ending on or after December 31, 2013, 2.25 to 1.00; (2) that after giving effect to the Indebtedness in question, all representations and warranties contained in the Loan Documents will be true and correct in all material respects on and as of the date of the incurrence thereof with the same force and effect as if such representations and warranties had been made on and as of such date, except to the extent that such representations and warranties relate specifically to another date; (3) that no Default or Event of Default exists or will exist immediately after the incurrence of such Indebtedness and (4) that the daily average Availability for the thirty (30) day period prior to the date of calculation equals or exceeds $15,000,000; and
(m) other Indebtedness of the Borrower and its Subsidiaries provided that the aggregate principal amount of Indebtedness permitted by this clause (vim) shall not exceed $25,000,000 1,000,000 at any time outstanding;
(vii) Indebtedness of the China JV in an aggregate principal amount not to exceed $20,000,000 at any time outstanding; provided that such Indebtedness is (A) secured only by assets of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
(viii) unsecured reimbursement obligations (contingent or otherwise) in respect of letters of credit issued to support obligations of the Borrower or any Restricted Subsidiary incurred in the ordinary course of business; provided that (A) the aggregate amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not at any time exceed $5,000,000 and (B) any disbursement in respect of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement is made; and
(ix) other Funded Indebtedness if, on the date of the creation, issuance, incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such date.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock), except that (i) Holdings may issue preferred stock or other preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted Subsidiary.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Borrower Transaction Parties will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term LoansIndebtedness created under the Loan Documents and, other than any Incremental Term Loansprior to the Supplemental Facility Termination Date, and Letters of Creditthe Supplemental Loan Documents;
(ii) Indebtedness existing on the Restatement Effective Date September 26, 1997, and set forth in Schedule 6.01 and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than by the amount of any fees or expenses incurred in the refinancing thereof) or result in an earlier maturity date or decreased weighted average life thereof, provided that the material terms of such extensions, renewals and replacements are at least as favorable to the Lenders as those of such Indebtedness;
(iii) Indebtedness of (a) any Loan Party that is not a Foreign Subsidiary to any other Loan Party that is not a Foreign Subsidiary (other than the Borrower or the Borrower Subsidiaries) and (b) the Borrower to Holdings or any Restricted Borrower Subsidiary and of any Restricted Borrower Subsidiary to the Borrower, Holdings Borrower or any other Restricted Borrower Subsidiary, in each case provided that Indebtedness of any Borrower Subsidiary that is not a Loan Party to the Borrower or any Subsidiary Loan Party shall be subject to Section 6.04;; 59 55
(iv) Guarantees by the any Subsidiary Loan Party of Indebtedness of any Borrower Subsidiary and by any Restricted Borrower Subsidiary of Indebtedness of Holdings, the Borrower or any other such Borrower Subsidiary, provided that such Guarantees are permitted by the Borrower or any Subsidiary Loan Party of Indebtedness of any Borrower Subsidiary that is not a Loan Party shall be subject to Section 6.04;
(v) Indebtedness of the Borrower Borrower, Hechinger, Hechinger East Coast, BSQ Newco, Hechinger Stores or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vi) 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 (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof or result in an earlier maturity date or decreased weighted average life thereof; , provided that (A) such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement and (B) the aggregate principal amount of Indebtedness permitted by this clause (viv) shall not exceed $25,000,000 15,000,000 at any time outstanding;
(vii) Indebtedness of the China JV in an aggregate principal amount not to exceed $20,000,000 at any time outstanding; provided that such Indebtedness is (A) secured only by assets of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
(viii) unsecured reimbursement obligations (contingent or otherwise) in respect of letters of credit issued to support obligations of the Borrower or any Restricted Subsidiary incurred in the ordinary course of business; provided that (A) the aggregate amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not at any time exceed $5,000,000 and (B) any disbursement in respect of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement is made; and
(ix) other Funded Indebtedness if, on the date of the creation, issuance, incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such date.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock), except that (i) Holdings may issue preferred stock or other preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted Subsidiary.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.
Appears in 1 contract
Samples: Credit Agreement (Hechinger Co)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, to create, incur, assume or permit to exist any Indebtedness, except:
(i) Term Loans, other than any Incremental Term Loans, and Letters of Creditthe Obligations;
(ii) the 2002 Senior Notes;
(iii) other Indebtedness existing on the Restatement Effective Date date hereof and set forth described in Schedule 6.01 and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than by the amount of any fees or expenses incurred in the refinancing thereof) or result in an earlier maturity date or decreased weighted average life thereof;
(iii) Indebtedness of the Borrower to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings or any other Restricted Subsidiary, in each case subject to Section 6.04;,
(iv) Guarantees by the Borrower Permitted Unsecured Debt, the Additional Permitted Unsecured Debt, the Permitted Subordinated Debt and by any Restricted Subsidiary of the Unit Debentures;
(v) Indebtedness of owed to Holdings, the Borrower or any other Subsidiary, provided that such Guarantees are permitted by Section 6.04;
(v) Indebtedness of the Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vi) Indebtedness of the Borrower or any Restricted Subsidiary incurred by Subsidiaries to finance the acquisition, construction or improvement of any fixed or capital assetsassets used in the ordinary course of their railroad transportation business, including Capital Lease Obligations (provided that such which Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured solely by a Lien on any such the assets prior to the acquisition thereofbeing acquired, and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof or result in an earlier maturity date or decreased weighted average life thereof; provided that the aggregate principal amount of the Indebtedness permitted by this clause (vi) shall and incurred during any fiscal year of Holdings does not exceed $25,000,000 at any time outstanding50,000,000;
(vii) Indebtedness of any Person that becomes a Subsidiary after the China JV in an aggregate principal amount not to exceed $20,000,000 at any time outstandingdate hereof; provided that such Indebtedness is (A) secured only by assets of exists at the China JV and not by assets of Holdings, the Borrower of any other Restricted time such Person becomes a Subsidiary and (B) is not Guaranteed by Holdings, the Borrower created in contemplation of or any other Restricted in connection with such Person becoming a Subsidiary;
(viii) unsecured reimbursement obligations Securitization Transactions;
(contingent ix) Indebtedness of Holdings or otherwise) a Subsidiary as an account party in respect of letters of credit issued to support obligations (which do not constitute Letters of the Borrower or Credit hereunder) in an aggregate stated amount at any Restricted Subsidiary incurred time outstanding not in the ordinary course excess of business$5,000,000; and
(x) other unsecured Indebtedness not expressly permitted by clauses (i) through (ix) above; provided that the sum of (A) the Indebtedness permitted by this clause (x), (B) the aggregate principal amount of the outstanding Indebtedness of Holdings secured by Liens permitted by clause (xi) of Section 6.02(a) and (C) the Attributable Debt in connection with all such letters Sale and Leaseback Transactions of credit Holdings and unreimbursed disbursements in respect thereof shall the Subsidiaries permitted by clause (c) of Section 6.03 does not at any time exceed $5,000,000 and (B) any disbursement in respect 10% of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement is made; and
(ix) other Funded Indebtedness if, on the date of the creation, issuance, incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such dateNet Worth.
(b) Holdings will not permit Caymex, NAFTA Rail, Canama or SCC Holdings, Inc. to create, incur, assume or permit to exist any Indebtedness, other than Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 owed by Caymex to Holdings and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted herebyAdditional Permitted Unsecured Indebtedness.
(c) Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock), except that (i) Holdings may issue other than preferred stock or other preferred Equity Interests of Holdings that are is not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause its terms or by the terms of any agreement or instrument subject to any redemption, repurchase or similar requirement, whether absolute, at the option of any holder thereof or upon the occurrence of any event or contingency (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted Subsidiary.
(dan event which results in an Event of Default hereunder) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed which could occur prior to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateralfinal maturity of all the Loans.
Appears in 1 contract
Samples: Amendment and Restatement Agreement (Kansas City Southern)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary Loan Party to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term Loans, other than Indebtedness created under the Loan Documents (including Indebtedness under any Incremental Term Loans, and Letters of CreditFacilities incurred in compliance with Section 2.19);
(ii) Indebtedness existing on the Restatement Effective Date and set forth in Schedule 6.01 (other than 2008 Subordinated Notes purchased in the Debt Tender Offer) and extensions, renewals, replacements or refinancings and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than by the amount of any fees or expenses incurred in the refinancing thereof) or result in an earlier maturity date or decreased weighted average life thereof; provided that (A) the terms of any extension, renewal, replacement or refinancing shall be satisfactory to the Administrative Agent and (B) any Indebtedness in respect of any extension, renewal, replacement or refinancing of any 2008 Subordinated Notes that remain outstanding after the Restatement Effective Date shall be subordinate to the Obligations on terms no less favorable to the Lenders than the subordination provisions of the 2008 Subordinated Notes;
(iii) Indebtedness of the Borrower to Holdings or any Restricted Subsidiary Loan Party and of any Restricted Subsidiary Loan Party to the Borrower, Holdings Borrower or any other Restricted Subsidiary, in each case subject to Section 6.04Subsidiary Loan Party;
(iv) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Restricted Subsidiary Loan Party of Indebtedness of Holdings, the Borrower or any other Subsidiary, ; provided that such Guarantees are permitted by the Borrower or any Subsidiary Loan Party of Indebtedness of any Excluded Subsidiary shall be subject to Section 6.04;
(v) Indebtedness of the Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vi) Indebtedness of the Borrower or any Restricted Subsidiary Loan Party incurred to finance the acquisition, construction or improvement by it of any fixed or capital assets, including Capital Lease Obligations (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof or result in an earlier maturity date or decreased weighted average life thereof; provided that (A) such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement and (B) the aggregate principal amount of Indebtedness permitted by this clause (v) shall not exceed $25,000,000 at any time outstanding;
(vi) Indebtedness of any Person that becomes a Subsidiary Loan Party after the Effective Date; provided that (A) such Indebtedness exists at the time such Person becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary and (B) the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $25,000,000 15,000,000 at any time outstanding;
(vii) Indebtedness of the China JV in an aggregate principal amount not to exceed $20,000,000 at any time outstanding; provided that such Indebtedness is (A) secured only by assets of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
(viii) unsecured reimbursement obligations (contingent or otherwise) in respect of letters of credit issued to support obligations the Subordinated Exchange Debentures or other Indebtedness of the Borrower or any Restricted Subsidiary incurred in to refinance the ordinary course outstanding shares of businessSeries A Preferred Stock; provided that (A) the aggregate principal amount of all such letters of credit and unreimbursed disbursements in respect thereof Indebtedness shall not at any time exceed $5,000,000 and the aggregate liquidation preference of the outstanding shares of Series A Preferred Stock being so refinanced, (B) any disbursement in respect of any such letter of credit Indebtedness shall be reimbursed subordinate to the Obligations on terms no less favorable to the Lenders than the subordination provisions set forth in full within three Business Days the Subordinated Exchange Debenture Indenture, (C) such Indebtedness shall mature on a date that is at least six months after the Tranche C Maturity Date, (D) the terms of such disbursement is madeIndebtedness shall be reasonably satisfactory to the Administrative Agent and (E) no Default shall have occurred and be continuing or would result from the incurrence of such Indebtedness and the Borrower shall be in compliance, on a pro forma basis after giving effect to such incurrence, with the covenants contained in Sections 6.13, 6.14, 6.15 and 6.16 recomputed as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements are available as if such incurrence had occurred on the first day of such period;
(viii) Permitted Subordinated Debt; and
(ix) other Funded Indebtedness if, on the date of the creation, issuance, incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such date.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of unsecured Indebtedness of the Borrower and the Restricted Subsidiaries permitted herebySubsidiary Loan Parties in an aggregate principal amount not exceeding $25,000,000 at any time outstanding.
(cb) Neither Holdings nor the The Borrower willwill not, nor will they it permit any Restricted Subsidiary Loan Party to, issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock)Interests, except that the Borrower may issue (i) Holdings may issue preferred stock or other preferred Equity Interests shares of Holdings that are not Disqualified Series A Preferred Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) pursuant to Section 3 of this Section 6.01 as if such clause applied to Holdings the Series A Preferred Certificate of Designation and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by other preferred Equity Interest that does not constitute a Person other than Holdings, the Borrower or any Restricted SubsidiaryDisqualified Equity Interest.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.
Appears in 1 contract
Samples: Amendment and Restatement Agreement (Cumulus Media Inc)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and Neither Holdings and nor the Borrower will, nor will not they permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term Loans, other than any Incremental Term Loans, and Letters of CreditIndebtedness created under the Loan Documents;
(ii) in the case of the Borrower, the Existing Senior Subordinated Notes in an aggregate principal amount not to exceed (x) the aggregate principal amount of the Existing Senior Subordinated Notes outstanding immediately following consummation of the Debt Tender Offer less (y) the aggregate principal amount of Existing Senior Subordinated Notes redeemed, repurchased or retired pursuant to Section 6.08 (and extensions, renewals and replacements of any such Existing Senior Subordinated Notes that do not increase the outstanding principal amount thereof (plus accrued and unpaid interest thereon) or result in an earlier maturity date or decreased weighted average life thereof and that do not have terms less favorable to the Lenders and the Borrower than the Existing Senior Subordinated Notes);
(iii) in the case of the Borrower, the Senior Subordinated Notes in an aggregate principal amount not to exceed (x) $200,000,000 less (y) the aggregate principal amount of Senior Subordinated Notes redeemed, repurchased or retired pursuant to Section 6.08 (and extensions, renewals and replacements of any such Senior Subordinated Notes that do not increase the outstanding principal amount thereof (plus accrued and unpaid interest thereon) or result in an earlier maturity date or decreased weighted average life thereof and that do not have terms less favorable to the Lenders and the Borrower than the Senior Subordinated Notes);
(iv) Indebtedness existing on the Restatement Effective Date (other than the Existing Senior Subordinated Notes and the Senior Subordinated Notes) and set forth in Schedule 6.01 and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than by the amount of any fees or expenses incurred in the refinancing thereof) or result in an earlier maturity date or decreased weighted average life thereof;
(iiiv) Indebtedness of the Borrower to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings or any other Restricted Subsidiary, in each case subject to Section 6.04;
(iv) Guarantees by the Borrower and by any Restricted Subsidiary of Indebtedness of Holdings, the Borrower or any other Subsidiary, provided that such Guarantees are permitted by Section 6.04;
(v) Indebtedness of the Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vi) 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 (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof; provided that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $25,000,000 at any time outstanding;
(vii) Indebtedness of the China JV in an aggregate principal amount not to exceed $20,000,000 at any time outstanding; provided that such Indebtedness is (A) secured only by assets of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
(viii) unsecured reimbursement obligations (contingent or otherwise) in respect of letters of credit issued to support obligations of the Borrower or any Restricted Subsidiary incurred in the ordinary course of business; provided that (A) Indebtedness of any Subsidiary that is not a Loan Party to the aggregate amount of all such letters of credit and unreimbursed disbursements in respect thereof Borrower or any Subsidiary Loan Party shall not at any time exceed $5,000,000 be subject to Section 6.04 and (B) any disbursement in respect of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement is made; and
(ix) other Funded Indebtedness if, on the date of the creation, issuance, incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such date.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower to any Subsidiary and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock), except that (i) Holdings may issue preferred stock or other preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted Subsidiary.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP any Subsidiary owed Loan Party to the Borrower or any Subsidiary that is not a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.shall be subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent;
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Each Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any IndebtednessIndebtedness or Attributable Debt, except:
(i) Term Loans, other than any Incremental Term Loans, and Letters of CreditIndebtedness created under the Loan Documents;
(ii) Indebtedness Indebtedness, including Guarantees, existing on the Restatement Effective Date date hereof and set forth in Schedule 6.01 and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than by the amount of any fees or expenses incurred in the refinancing thereof) or result in an earlier maturity date that is prior to the date six months after the Maturity Date or decreased weighted average life thereof;
(iii) Indebtedness of the such Borrower to Holdings the other Borrower or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings either Borrower or any other Restricted Subsidiary, in each case ; provided that Indebtedness of any Restricted Subsidiary that is not a Loan Party owed to any Loan Party shall be subject to Section 6.04; provided, further, that any such Indebtedness owing to a Borrower, including any Mirror Note, shall be pledged pursuant to the Second Amended and Restated FCX Pledge Agreement (Indebtedness) or the Third Amended and Restated Lender Fiduciary Assignment and any promissory note evidencing any such Indebtedness, including any Mirror Note, shall be delivered to the Security Agent or Administrative Agent, as appropriate;
(iv) Guarantees by the Borrower and by any Restricted Subsidiary of Indebtedness of Holdings, the Borrower secured or any other Subsidiary, provided that such Guarantees are permitted by Section 6.04;
(v) unsecured Indebtedness of the Borrower Borrowers or any Restricted Subsidiary and Attributable Debt in respect of workers’ compensation claimssale and leaseback transactions permitted by Section 6.06(a), self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vi) Indebtedness of the Borrower or any Restricted Subsidiary each case incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereofthereof but excluding Additional Infrastructure Financings, and extensions, renewals, refinancings renewals and replacements of any such Indebtedness or Attributable Debt that do not increase result in an earlier maturity date or decreased weighted average life thereof; provided that (A) any such Indebtedness or Attributable Debt is incurred within 180 days prior to or within 180 days after such acquisition or the outstanding completion of such construction or improvement and (B) any such Attributable Debt is incurred in accordance with Section 6.06;
(v) Indebtedness of PTFI and/or FCX or Attributable Debt of PTFI or any Restricted Subsidiary incurred in connection with any Additional Infrastructure Financing or any PT Kencana Financing, and extensions, renewals and replacements of any such Indebtedness or Attributable Debt that do not result in an earlier maturity date or decreased weighted average life thereof; provided that the aggregate principal amount thereof; of Indebtedness and the aggregate amount of Attributable Debt permitted by this clause (v) (including any such extensions, renewals and replacements) shall not exceed $300,000,000 at any time outstanding;
(vi) Block B Debt of FCX, PTFI or a Restricted Subsidiary, provided that such Block B Debt satisfies the Block B Conditions;
(vii) [Intentionally Omitted];
(viii) Permitted FCX Indebtedness;
(ix) Indebtedness of FCX Guaranteed on an unsecured basis by PTFI that, but for such Guarantee, would constitute Permitted FCX Indebtedness, and Indebtedness of PTFI that, but for being the direct obligation of PTFI, otherwise meets the requirements of Permitted FCX Indebtedness, provided that the aggregate principal amount of Indebtedness permitted by this clause (viix) shall not exceed $25,000,000 250,000,000 at any time outstanding;
(viix) Guarantees by the Borrowers or any Restricted Subsidiary of Indebtedness of Unrestricted Subsidiaries (including Guarantees secured by pledges of the China JV in an aggregate principal amount not to exceed $20,000,000 Equity Interests of such Unrestricted Subsidiaries) permitted by Section 6.04(h);
(xi) at any time outstanding; provided that such prior to the Initial Borrowing Availability Date, Indebtedness is (A) secured only by assets consisting of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
(viii) unsecured reimbursement obligations (contingent or otherwise) in respect of letters of credit issued to support by JPMCB for the account of the Borrowers in a stated amount not in excess of $3,000,000;
(xii) unsecured Guarantees of FCX or PTFI of obligations of the Borrower or a purchaser in an FCX Assisted PTFI Sale to lenders providing financing for such sale in an aggregate amount not at any Restricted Subsidiary incurred time in the ordinary course excess of business; provided that (Ax) the aggregate amount of all cash consideration received by FCX or any Restricted Subsidiary for such letters FCX Assisted PTFI Sale minus (y) the aggregate amount of credit and unreimbursed disbursements in respect thereof shall not at any time exceed $5,000,000 and (B) any disbursement payments theretofore made in respect of any principal obligations under such letter of credit shall be reimbursed in full within three Business Days after such disbursement is madeGuarantee; and
(ixxiii) other Funded Indebtedness if, on the date of the creation, issuance, incurrence or assumption Borrowers and the Restricted Subsidiaries and Attributable Debt in respect of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 sale and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered leaseback transactions permitted pursuant to Section 5.01(a6.06(c) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds in an aggregate principal amount not in excess of such Funded Indebtedness on or within 10 days after such date$25,000,000 at any time outstanding.
(b) Holdings PTFI will not createissue, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the neither Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary toto issue, issue any preferred stock or other preferred Equity Interests (including Interests; provided that PTFI and any Disqualified Stock), except that (i) Holdings Restricted Subsidiary may issue preferred stock or other preferred Equity Interests in an aggregate stated amount not in excess of Holdings $100,000,000; provided that are not Disqualified Stock and Disqualified Stock if no such issuance would preferred stock or preferred Equity Interests shall be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied subject to Holdings and (ii) Holdingsany redemption, the Borrower repurchase or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted Subsidiary.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed defeasance requirement prior to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateraldate six months after the Maturity Date.
Appears in 1 contract
Samples: Credit Agreement (Freeport McMoran Copper & Gold Inc)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary Loan Party to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term Loans, other than Indebtedness created under the Loan Documents (including Indebtedness under any Incremental Term Loans, and Letters of CreditFacilities incurred in compliance with Section 2.19);
(ii) Indebtedness existing on the Restatement Effective Date and set forth in Schedule 6.01 and extensions, renewals, replacements or refinancings and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than by the amount of any fees or expenses incurred in the refinancing thereof) or result in an earlier maturity date or decreased weighted average life thereof; provided that the terms of any extension, renewal, replacement or refinancing shall be satisfactory to the Administrative Agent;
(iii) Indebtedness of the Borrower to Holdings or any Restricted Subsidiary Loan Party and of any Restricted Subsidiary Loan Party to the Borrower, Holdings Borrower or any other Restricted Subsidiary, in each case subject to Section 6.04Subsidiary Loan Party;
(iv) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Restricted Subsidiary Loan Party of Indebtedness of Holdings, the Borrower or any other Subsidiary, ; provided that such Guarantees are permitted by the Borrower or any Subsidiary Loan Party of Indebtedness of any Excluded Subsidiary shall be subject to Section 6.04;
(v) Indebtedness of the Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vi) Indebtedness of the Borrower or any Restricted Subsidiary Loan Party incurred to finance the acquisition, construction or improvement by it of any fixed or capital assets, including Capital Lease Obligations (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof or result in an earlier maturity date or decreased weighted average life thereof; provided that (A) such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement and (B) the aggregate principal amount of Indebtedness permitted by this clause (v) shall not exceed $25,000,000 at any time outstanding;
(vi) Indebtedness of any Person that becomes a Subsidiary Loan Party after the Effective Date; provided that (A) such Indebtedness exists at the time such Person becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary and (B) the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $25,000,000 15,000,000 at any time outstanding;
(vii) Permitted Debt; and
(viii) other unsecured Indebtedness of the China JV Borrower and the Subsidiary Loan Parties in an aggregate principal amount not to exceed exceeding $20,000,000 25,000,000 at any time outstanding; provided that such Indebtedness is (A) secured only by assets of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
(viii) unsecured reimbursement obligations (contingent or otherwise) in respect of letters of credit issued to support obligations of the Borrower or any Restricted Subsidiary incurred in the ordinary course of business; provided that (A) the aggregate amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not at any time exceed $5,000,000 and (B) any disbursement in respect of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement is made; and
(ix) other Funded Indebtedness if, on the date of the creation, issuance, incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such date.
(b) Holdings The Borrower will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower willnot, nor will they it permit any Restricted Subsidiary Loan Party to, issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock)Interests, except that (i) Holdings the Borrower may issue preferred stock or other any preferred Equity Interests of Holdings Interest that are does not constitute a Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted SubsidiaryEquity Interest.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.
Appears in 1 contract
Samples: Credit Agreement (Cumulus Media Inc)
Indebtedness; Certain Equity Securities. (a) The Borrower Company will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term Loans, other than any Incremental Term Loans, and Letters of CreditIndebtedness created under the Loan Documents;
(ii) Indebtedness existing on the Restatement Effective Date date hereof and set forth in Schedule 6.01 and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than by except to the amount extent of any reasonable premiums, fees or and expenses incurred in the refinancing thereofconnection with any such extensions, renewals and replacements) or result in an earlier maturity date or decreased weighted average life thereof;
(iii) Indebtedness of the Borrower Company to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings Company or any other Restricted Subsidiary, in each case ; provided that Indebtedness of any Subsidiary that is not a Loan Party owing to any Loan Party shall be subject to Section 6.04;
(iv) Guarantees by the Borrower Company of Indebtedness of any Subsidiary and by any Restricted Subsidiary of Indebtedness of Holdings, the Borrower Company or any other Subsidiary, ; provided that such (A) Guarantees are permitted by any Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 6.046.04 and (B) a Canadian Loan Party shall not Guarantee Indebtedness of a U.S. Loan Party;
(v) Indebtedness of the Borrower Company or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vi) 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 (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (except to the extent of any reasonable premiums, fees and expenses incurred in connection with any such extensions, renewals and replacements) or result in an earlier maturity date or decreased weighted average life thereof; provided that (A) such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement and (B) the aggregate principal amount of Indebtedness permitted by this clause (v) and clause (vi) below, plus the aggregate book value of all assets sold after the Effective Date pursuant to sale and leaseback transactions permitted by clause (c) of Section 6.06, shall not exceed, at any time outstanding, 10% of the Company's Consolidated Tangible Net Worth;
(vi) Indebtedness of the Company or any Subsidiary for borrowed money secured by any real properties (other than Mortgaged Properties) and improvements thereto (but not inventory or other personal property located therein) owned by the Company or any Subsidiary, and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (except to the extent of any reasonable premiums, fees and expenses incurred in connection with any such extensions, renewals and replacements) or result in an earlier maturity date or decreased weighted average life thereof; provided that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $25,000,000 at any time outstandingbe subject to the limitation set forth in the proviso to clause (v) above;
(vii) Indebtedness of the China JV Company or any Subsidiary relating to purchase money security interests (as defined in the New York Uniform Commercial Code, as amended) in the United States or such similar provision of Ontario law or any other applicable Province of Canada in an aggregate amount not exceeding U.S.$40,000,000 (or its equivalent) at any time outstanding; provided that, after giving effect to any such proposed transaction, (A) no Default shall have occurred and be continuing, (B) the total U.S. Exposure does not exceed the total U.S. Commitments, (C) the total Canadian Exposure does not exceed the total Canadian Commitments and (D) the sum of the U.S. Borrowing Base and the Canadian Borrowing Base is greater than the sum of the total U.S. Commitments and the total Canadian Commitments; and
(viii) other unsecured Indebtedness in an aggregate principal amount not to exceed $20,000,000 exceeding U.S.$40,000,000 (or its equivalent) at any time outstanding; provided that such Indebtedness is (A) secured only by assets of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
(viii) unsecured reimbursement obligations (contingent or otherwise) in respect of letters of credit issued to support obligations of the Borrower or any Restricted Subsidiary incurred in the ordinary course of business; provided that (A) the aggregate amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not at any time exceed $5,000,000 and (B) any disbursement in respect of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement is made; and
(ix) other Funded Indebtedness if, on the date of the creation, issuance, incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such date.
(b) Holdings The Company will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower willnot, nor will they the Company permit any Restricted Subsidiary to, issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock)Interests, except that (i) Holdings may issue preferred stock or other preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted SubsidiaryQualified Preferred Stock.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.
Appears in 1 contract
Samples: Credit Agreement (Great Atlantic & Pacific Tea Co Inc)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term Loans, other than any Incremental Term Loans, and Letters of CreditIndebtedness created under the Loan Documents;
(ii) Indebtedness created under the Credit Documents (in an aggregate principal amount of Indebtedness thereunder of up to $163,000,000);
(iii) the Subordinated Debt (in an aggregate principal amount of Indebtedness thereunder of up to $173,000,000);
(iv) Indebtedness existing on the Restatement Effective Date date hereof and set forth in Schedule 6.01 and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than by the amount of any fees or expenses incurred in the refinancing thereof) or result in an earlier maturity date or decreased weighted average life thereof;
(iiiv) Indebtedness of the Borrower to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings or any other Restricted Subsidiary, in each case subject to Section 6.04;
(iv) Guarantees by the Borrower and by any Restricted Subsidiary of Indebtedness of Holdings, the Borrower or any other Subsidiary, provided that such Guarantees are permitted by Indebtedness of any Subsidiary that is not a Subsidiary Loan Party to the Borrower or any Subsidiary Loan Party shall be subject to Section 6.04;
(vvi) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, provided that Guarantees by the Borrower or any Subsidiary Loan Party of Indebtedness of any Subsidiary that is not a Subsidiary Loan Party shall be subject to Section 6.04;
(vii) Indebtedness of the Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vi) Indebtedness of the Borrower or any Restricted Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assetsassets (including related fees and expenses), including Capital Lease Obligations (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, provided that such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof or result in an earlier maturity date or decreased weighted average life thereof; , provided that the aggregate principal amount of Indebtedness permitted by this clause (vivii) shall not exceed $25,000,000 15,000,000 at any time outstanding;
(viiviii) Indebtedness obligations with respect to surety, appeal and performance bonds obtained by the Borrower or any of the China JV Subsidiaries in the ordinary course of business;
(ix) other unsecured Indebtedness in an aggregate principal amount not to exceed exceeding $20,000,000 10,000,000 at any time outstandingoutstanding (less the outstanding principal amount of the Loans under the Loan Documents);
(x) the Junior Subordinated Exchange Notes in an aggregate principal amount not in excess of the liquidation value of the Series A-1 Preferred Stock, provided that such Junior Subordinated Exchange Notes shall be in the form annexed to the Restated Certificate of Incorporation as in effect on the Effective Date; and
(xi) Indebtedness of the Borrower in an aggregate principal amount not exceeding $10,000,000; provided that such Indebtedness is (A) secured only by assets of subordinated to the China JV Obligations, and not by assets of Holdingshas other terms and conditions, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
(viii) unsecured reimbursement obligations (contingent or otherwise) in respect of letters of credit issued reasonably satisfactory to support obligations of the Borrower or any Restricted Subsidiary incurred in the ordinary course of business; provided that (A) the aggregate amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not at any time exceed $5,000,000 and (B) any disbursement in respect of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement is made; and
(ix) other Funded Indebtedness if, on the date of the creation, issuance, incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such dateRequired Lenders.
(b) Holdings The Borrower will not, and will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock)Interests, except that other than preferred stock issued by the Borrower the terms of which do not provide for (i) Holdings may issue preferred stock any amortization, sinking fund payment, mandatory redemption, other required repayment or repurchase of, or other Restricted Payment with respect to, such preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied stock, in each case prior to Holdings and the Maturity Date or (ii) Holdings, the Borrower any covenants or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law events of default relating to be held by a Person other such preferred stock which are more restrictive than Holdings, the Borrower or any Restricted Subsidiary.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed those relating to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged Preferred Stock contained in the Restated Certificate of Incorporation as Collateralin effect on the Effective Date.
Appears in 1 contract
Samples: Credit Agreement (Knowles Electronics Holdings Inc)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term Loans, other than any Incremental Term Loans, and Letters of CreditIndebtedness created under the Loan Documents;
(ii) (x) The 2019 Notes, the 2019 Convertible Notes, the New Notes, the other Indebtedness existing on the Restatement Effective Date date hereof and set forth in Schedule 6.01 (other than any Indebtedness permitted by Section 6.01(a)(xv)) and extensions, renewals, refinancings renewals and replacements of any such Indebtedness, provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that do was not increase an obligor with respect to the outstanding Indebtedness being extended, renewed or replaced, (B) shall not be in a principal amount thereof that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (other than plus any accrued but unpaid interest and redemption premium payable by the amount terms of any fees or expenses incurred in the refinancing thereofsuch Indebtedness thereon), (C) or result in shall not have an earlier maturity date or decreased shorter weighted average life thereofthan the Indebtedness being extended, renewed or replaced and (D) shall be subordinated to the Obligations on terms at least as favorable to the Lenders as the subordination terms (if any) of the Indebtedness being extended, renewed or replaced and (y) (I) prior to the 2016 Springing Maturity Date, the 2016 Notes (including the guarantees in respect thereof existing on the Effective Date) and (II) prior to the 2017 Springing Maturity Date, the 2017 Notes (including the guarantees in respect thereof existing on the Effective Date);
(iii) Indebtedness of the Borrower to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings or any other Restricted Subsidiary, in each case subject to Section 6.04;
(iv) Guarantees by the Borrower and by any Restricted Subsidiary of Indebtedness of Holdings, the Borrower or any other Subsidiary, provided that such Guarantees are permitted by (A) Indebtedness of any Subsidiary to the Borrower shall be subject to Section 6.046.04 and (B) Indebtedness of the Borrower to any Subsidiary shall be subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent;
(viv) Guarantees (A) by the Borrower of Indebtedness of any Subsidiary that is permitted by this Section and (B) by any Subsidiary of Indebtedness of any other Subsidiary that is permitted by this Section (other than clause (a)(ii) and (a)(xv));
(A) Indebtedness of the Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vi) 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, Synthetic Lease Obligations (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) 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, provided that such Indebtedness is incurred prior to or within 270 days after such acquisition or the completion of such construction or improvement, and (B) extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase so long as the outstanding principal amount thereof; of such extensions, renewals and replacements does not exceed the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium payable by the terms of such Indebtedness thereon), provided that no Indebtedness may be incurred under this clause (v) if, after giving effect to such incurrence, the aggregate principal amount of Indebtedness permitted then outstanding under this clause (v) together with all Indebtedness under clause (a)(vi) of this Section that is secured by a Lien or incurred by a Subsidiary, exceeds $300,000,000 as of the date of such incurrence;
(vi) Indebtedness of the Borrower or any Subsidiary, provided that (A) the Borrower is in compliance, on a Pro Forma Basis after giving effect to the incurrence of such Indebtedness as of the last day of the most-recently ended fiscal quarter of the Borrower, with the Financial Covenants, and (B) no Indebtedness of any Subsidiary may be incurred under this clause (vi) shall not exceed if, after giving effect to such incurrence, the aggregate principal amount of Indebtedness of Subsidiaries then outstanding under this clause (vi), together with (1) the aggregate principal amount of Indebtedness of the Borrower then outstanding under this clause (vi) that is secured by a Lien on any assets of the Borrower and (2) the aggregate principal amount of Indebtedness then outstanding under clause (a)(v) of this Section, exceeds $25,000,000 at any time outstanding300,000,000;
(vii) Indebtedness of the China JV in an aggregate principal amount not owed to exceed $20,000,000 at any time outstanding; provided that such Indebtedness is Person (A) secured only by assets of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
(viii) unsecured reimbursement including obligations (contingent or otherwise) in respect of letters of credit issued for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to support reimbursement or indemnification obligations of the Borrower or any Restricted Subsidiary to such Person, in each case incurred in the ordinary course of business; provided that ;
(Aviii) Indebtedness of the aggregate amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not at Borrower or any time exceed $5,000,000 and (B) any disbursement Subsidiary in respect of performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees and similar obligations (other than in respect of other Indebtedness), in each case provided in the ordinary course of business;
(ix) Indebtedness in respect of Swap Agreements not entered into for speculative purposes;
(x) Indebtedness or other obligations arising from products and services offered by Bank Regulated Subsidiaries, Broker Dealer Regulated Subsidiaries or Insurance Regulated Subsidiaries in the ordinary course including, but not limited to, deposits, CDs, prepaid forward contracts, swaps, exchangeable debt securities, foreign currency purchases or sales and letters of credit, customer activities and clearing and clearing-related activities (including, in each case, Indebtedness to finance such activities);
(xi) Indebtedness or other obligations incurred in the ordinary course arising from margin lending, Stock Loan activities, customer activities, clearing and clearing-related activities or foreign currency settlement obligations of a Broker Dealer Regulated Subsidiary (including, in each case, Indebtedness to finance such activities);
(xii) Indebtedness arising from agreements of the Borrower or a Subsidiary providing for indemnification, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the disposition of any business, assets or a Subsidiary, other than Guarantees of Indebtedness incurred by any Person acquiring all or any portion of such letter business, assets or a Subsidiary for the purpose of credit shall be reimbursed financing such acquisition;
(xiii) [Reserved];
(xiv) advances from a Federal Home Loan Bank, a Federal Reserve Bank, Xxxxxx Xxx or another institution similar to any of the foregoing, repurchase and reverse repurchase agreements relating to Investment Securities, medium term notes, treasury tax and loan balances, special direct investment balances, bank notes, commercial paper, term investment option balances, brokered certificates of deposit, dollar rolls and federal funds purchased, in full within three Business Days after such disbursement is madeeach case incurred in the ordinary course of a Regulated Subsidiary’s business; and
(ixxv) other Funded Indebtedness ifof a Bank Regulated Subsidiary consisting of trust preferred or similar securities, in each case, outstanding on the date Effective Date (it being understood that such trust preferred or similar securities shall be permitted only under this clause (xv) and not under any other clause of the creation, issuance, incurrence or assumption this Section 6.01(a)). Notwithstanding any other provision of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateralthis Section 6.01(a), (xI) the Leverage Ratio is less Borrower shall not permit any Subsidiary to Guarantee all or any portion of the 2019 Notes, the 2019 Convertible Notes (other than 4.00 with respect to 1.00 any guarantees of the 2019 Convertible Notes that are in effect on the Effective Date) or the New Notes, (II) ETB Holdings shall not be permitted to incur any Indebtedness under this Section 6.01(a) after the Effective Date other than under Section 6.01(a)(iii) and (yIII) if such no Regulated Subsidiary shall incur any Indebtedness that is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA incurred for the most recent period purpose of four fiscal quarters for which financial statements have been delivered pursuant contributing to Section 5.01(a) or (b), as applicable, determined after giving effect meeting any capital requirements applicable to such Funded Indebtedness to be created, issued, incurred itself or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such dateany other Regulated Subsidiary.
(b) Holdings The Borrower will not, and will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, issue any preferred stock or other Equity Interests except (i) in the case of the Borrower, preferred Equity Interests that are Qualified Equity Interests, (including any Disqualified Stockii) Equity Interests permitted to be issued under Section 6.05(k), except that (iiii) Holdings may issue preferred stock or other preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted issued by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted Subsidiary.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume a wholly owned Subsidiary or permit to exist any Indebtedness (regardless iv) in the case of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP a Regulated Subsidiary owed to the Borrower or a Subsidiary Loan Party of a Regulated Subsidiary, preferred Equity Interests, provided that is otherwise any issuance under this clause (b)(iv) shall reduce the amount of Indebtedness permitted to be incurred by this Agreement and is pledged as CollateralSubsidiaries under Section 6.01(a)(vi).
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term Loans, other than any Incremental Term Loans, and Letters of CreditIndebtedness created under the Loan Documents;
(ii) Indebtedness (other than Permitted Convertible Debt) existing on the Restatement Effective Date and set forth in Schedule 6.01 and extensions, renewals, refinancings and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than by the amount of any fees or expenses incurred in the refinancing thereof) or result in an earlier maturity date or decreased weighted average life thereof;
(iii) Indebtedness of the Borrower to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings or any other Restricted Subsidiary, in each case subject to Section 6.04;
(iv) Guarantees by the Borrower and by any Restricted Subsidiary of Indebtedness of Holdings, the Borrower or any other Subsidiary, provided that such Guarantees are permitted by the Borrower or any Subsidiary Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 6.04;
(v) Indebtedness of the Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vi) 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 (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof; , provided that the aggregate principal amount of Indebtedness permitted by this clause (viv) shall not exceed $25,000,000 at any time outstanding;
(viivi) Indebtedness of the China JV Borrower or any Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion guarantees provided by the Borrower and the Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vii) Permitted Convertible Debt;
(viii) Indebtedness of the Borrower or any Subsidiary that was Indebtedness of any other Person existing at the time such other Person was merged with or became a Subsidiary after the Restatement Effective Date, including Indebtedness incurred in connection with, or in contemplation of, such other Person’s merging with or becoming a Subsidiary after the Restatement Effective Date, and extensions, renewals, refinancings and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof or result in an earlier maturity date or decreased weighted average life thereof, provided that the aggregate principal amount of Indebtedness permitted under this clause (viii) shall not exceed $25,000,000 at any time outstanding;
(ix) other unsecured Indebtedness in an aggregate principal amount not to exceed exceeding $20,000,000 50,000,000 at any time outstanding; , provided that the aggregate principal amount of Indebtedness of the Subsidiaries that are not Subsidiary Loan Parties permitted by this clause (ix) shall not exceed $25,000,000 at any time outstanding;
(x) Indebtedness of Leshan-Phoenix Semiconductor Co., Ltd. (the “China JV”) in an aggregate principal amount not exceeding $25,000,000 at any time outstanding, provided that such Indebtedness is (A) secured only by assets of the China JV and not by the assets of Holdings, the Borrower of or any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
(viiixi) Indebtedness for borrowed money incurred (A) by the China JV to refinance Indebtedness owed by the China JV to Holdings, the Borrower or any Subsidiary or (B) by the Borrower, which Indebtedness is guaranteed by the China JV in consideration for the cancelation by Holdings, the Borrower or any Subsidiary, as the case may be, of Indebtedness of the China JV owing to Holdings, the Borrower or such Subsidiary, as the case may be, having an aggregate principal amount that is no greater than the aggregate principal amount of the Indebtedness so canceled; provided that (1) the aggregate principal amount of such Indebtedness shall not exceed $100,000,000, (2) the interest rate payable by the China JV or the Borrower in respect of any such Indebtedness so incurred is less than the interest rate payable by the China JV in respect of the Indebtedness so repaid (in the case of Indebtedness incurred under clause (A) above) or canceled (in the case of Indebtedness incurred under clause (B) above), (3) such Indebtedness (x) shall not be secured by any Lien other than Liens permitted by Section 6.02(a)(x), (y) shall not be Guaranteed by any Person other than the China JV and (z) shall not (in the case of Indebtedness incurred pursuant to clause (B) above) mature, and no amortization or principal payment in respect thereof shall be made, prior to the date that is six months after December 15, 2011; and
(xii) unsecured reimbursement obligations (contingent or otherwise) in respect of letters of credit issued to support obligations of the Borrower or any Restricted Subsidiary incurred in the ordinary course of business; provided that (A) the aggregate undrawn amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not at any time exceed $5,000,000 10,000,000 and (B) any disbursement in respect of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement is made; and
(ix) other Funded Indebtedness if, on the date of the creation, issuance, incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such date.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) and (a)(vii) of this Section 6.01 or under Section 6.01(e), and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock)Interests, except that (i) Holdings may issue preferred stock or other preferred Equity Interests of Holdings that are do not Disqualified Stock require mandatory cash dividends or redemptions and Disqualified Stock if such issuance would be permitted by clause (a)(ix) do not provide for any right on the part of this Section 6.01 as if such clause applied the holder to Holdings require redemption, repurchase or repayment thereof, in each case prior to the date that is 91 days after December 15, 2011, and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted Subsidiary.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as CollateralAgreement.
(e) Notwithstanding anything contained in Section 6.01(a), (b) or (c), Holdings may issue preferred stock, or Holdings or the Borrower may incur Indebtedness, in each case pursuant to a Qualified Liquidity Financing.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term Loans, other than Indebtedness created under the Loan Documents (including any Incremental Term Loans, and Letters of CreditGuarantees thereof);
(ii) the Senior Subordinated Debt and Refinancing Indebtedness in respect thereof; provided that any such Refinancing Indebtedness does not mature, and is not subject to mandatory repurchase, redemption or amortization (other than mandatory prepayment provisions in connection with asset dispositions or a change of control not materially less favorable to the Lenders than those contained in the Senior Subordinated Debt Documents), in each case, prior to the date that is six months after the Term Loan Maturity Date;
(iii) Indebtedness existing on the Restatement Effective Date date hereof and set forth in Schedule 6.01 and extensions, renewals, refinancings and replacements of any such Refinancing Indebtedness that do not increase the outstanding principal amount thereof (other than by the amount of any fees or expenses incurred in the refinancing thereof) or result in an earlier maturity date or decreased weighted average life respect thereof;
(iiiiv) Indebtedness of the Borrower owed to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary owed to the Borrower, Holdings Borrower or any other Restricted Subsidiary, in each case ; provided that (i) any such Indebtedness owed by a Loan Party is subordinated to the Obligations pursuant to the Affiliate Subordination Agreement and (ii) Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary Loan Party shall be subject to Section 6.04;
(ivv) Guarantees by the Borrower and of Indebtedness of any Subsidiary, by any Restricted Subsidiary of Indebtedness of Holdings, any other Subsidiary and by any Subsidiary Loan Party of Indebtedness of the Borrower; provided that Guarantees by the Borrower or any other Subsidiary, provided Subsidiary Loan Party of Indebtedness of any Subsidiary that such Guarantees are permitted by is not a Loan Party shall be subject to Section 6.04;
(v) Indebtedness of the Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vi) Indebtedness of the Borrower or any Restricted Subsidiary (a) incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings extensions and replacements Refinancing Indebtedness in respect of any such Indebtedness, provided that such Indebtedness that do not increase is incurred prior to or within 180 days after such acquisition or the outstanding principal amount thereofcompletion of such construction or improvement, or (b) constituting a Capital Lease Obligation as part of a sale and leaseback transaction permitted by Section 6.06; provided that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $25,000,000 at any time outstandingexceed the greater of $20,000,000 and 3.25% of Consolidated Total Assets;
(vii) Indebtedness of any Person that becomes a Subsidiary after the China JV date hereof, and extensions and Refinancing Indebtedness in respect of any such Indebtedness; provided that (A) such acquired Indebtedness exists at the time such Person becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary (except to the extent such acquired Indebtedness refinanced other Indebtedness to facilitate such entity becoming a Subsidiary) and (B) the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not at any time exceed the greater of $10,000,000 and 1.75% of Consolidated Total Assets;
(viii) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations are reimbursed not later than 30 days following such incurrence;
(ix) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services in the ordinary course of business, provided that (i) such Indebtedness (other than credit or purchase cards) is extinguished within ten Business Days of its incurrence and (ii) such Indebtedness in respect of credit or purchase cards is extinguished within 60 days from its incurrence;
(x) Indebtedness arising from agreements of the Borrower or any Subsidiary providing for indemnification, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the disposition of any business, assets or a Subsidiary permitted hereunder, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition;
(xi) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds, financial assurances and completion guarantees and similar obligations, in each case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(xii) all premium (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in paragraphs (i) through (xiii) above and paragraph (xv) below;
(xiii) cash management obligations and other Indebtedness in respect of netting services, overdraft protection and similar arrangements, in each case, in connection with cash management and deposit accounts;
(xiv) other Indebtedness in an aggregate principal amount not to exceed exceeding $20,000,000 at any time outstanding; provided that such Indebtedness is (A) secured only by assets of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary5,000,000;
(viiixv) unsecured reimbursement obligations Indebtedness of any Loan Party pursuant to Swap Agreements permitted by Section 6.07;
(contingent or otherwisexvi) in respect of letters of credit issued Indebtedness representing deferred compensation to support obligations employees of the Borrower or any Restricted Subsidiary incurred in the ordinary course of business; provided that ;
(Axvii) the aggregate amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not at any time exceed $5,000,000 and (B) any disbursement Indebtedness in respect of promissory notes issued to consultants, employees or directors or former employees, consultants or directors of a Parent, Holdings, the Borrower or any such letter Subsidiary in connection with repurchases of credit shall be reimbursed in full within three Business Days after such disbursement is madeEquity Interests permitted by Section 6.08(a); and
(ixxviii) other Funded Permitted Subordinated Indebtedness if, on and Permitted Holdings Debt without any limitation as to amount so long as the date of the creation, issuance, incurrence or assumption Net Proceeds of such Permitted Subordinated Indebtedness (oror Permitted Holdings Debt are used, in the case of Funded Indebtedness that becomes secured by collateral promptly after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral)Net Proceeds are received, (xA) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) consummate one or (b), more Permitted Acquisitions so long as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds incurrence of such Funded Permitted Subordinated Indebtedness on or within 10 days after Permitted Holdings Debt and such datePermitted Acquisition, the Leverage Ratio would be less than or equal to the Leverage Ratio prior to giving effect to the incurrence of such Permitted Subordinated Indebtedness or Permitted Holdings Debt and such Permitted Acquisition or (B) applied to prepay Term Loans; provided, that no Default has occurred and is continuing or would result therefrom.
(b) Holdings The Borrower will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower willnot, nor will they it permit any Restricted Subsidiary to, issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock)Interests, except that other than (i) Non-Cash Pay Preferred Stock of the Borrower, issued to Holdings may issue and pledged pursuant to the Collateral Agreement and (ii) preferred stock or other preferred Equity Interests of Holdings that are not Disqualified Stock a Subsidiary, issued to a Loan Party and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted Subsidiary.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed pledged pursuant to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as CollateralCollateral Agreement.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Each Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any IndebtednessIndebtedness or Attributable Debt, except:
(i) Term Loans, other than any Incremental Term Loans, and Letters of CreditIndebtedness created under the Loan Documents;
(ii) Indebtedness Indebtedness, including Guarantees, existing on the Restatement Effective Date date hereof and set forth in Schedule 6.01 and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than by the amount of any fees or expenses incurred in the refinancing thereof) or result in an earlier maturity date that is prior to the date six months after the Maturity Date or decreased weighted average life thereof; provided that extensions, renewals and replacements of Indebtedness relating to the Indonesian Power Project may result in increased scheduled mandatory payments of principal payable on a date prior to the date six months after the Maturity Date in an aggregate principal amount of such increased payments above the currently scheduled payments not to exceed $25,000,000;
(iii) Indebtedness of the such Borrower to Holdings the other Borrower or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings either Borrower or any other Restricted Subsidiary, in each case ; provided that Indebtedness of any Restricted Subsidiary that is not a Loan Party to any Loan Party shall be subject to Section 6.04; provided, further, that any such Indebtedness owing to a Borrower, including any Mirror Note, shall be pledged pursuant to the FCX Pledge Agreement (Indebtedness) or the Second Amended and Restated Lender Fiduciary Assignment and any promissory note evidencing any such Indebtedness, including any Mirror Note, shall be delivered to the Security Agent or Administrative Agent, as appropriate;
(iv) Guarantees by the Borrower and by any Restricted Subsidiary of Indebtedness of Holdings, the Borrower secured or any other Subsidiary, provided that such Guarantees are permitted by Section 6.04;
(v) unsecured Indebtedness of the Borrower Borrowers or any Restricted Subsidiary and Attributable Debt in respect of workers’ compensation claimssale and leaseback transactions permitted by Section 6.06(a), self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vi) Indebtedness of the Borrower or any Restricted Subsidiary each case incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereofthereof but excluding Additional Infrastructure Financings, and extensions, renewals, refinancings renewals and replacements of any such Indebtedness or Attributable Debt that do not increase result in an earlier maturity date or decreased weighted average life thereof; provided that (A) any such Indebtedness or Attributable Debt is incurred within 180 days prior to or within 180 days after such acquisition or the outstanding completion of such construction or improvement and (B) any such Attributable Debt is incurred in accordance with Section 6.06;
(v) Indebtedness of PTFI and/or FCX or Attributable Debt of PTFI or any Restricted Subsidiary incurred in connection with any Additional Infrastructure Financing or any PT Kencana Financing, and extensions, renewals and replacements of any such Indebtedness or Attributable Debt that do not result in an earlier maturity date or decreased weighted average life thereof; provided that the aggregate principal amount thereof; of Indebtedness and the aggregate amount of Attributable Debt permitted by this clause (v) (including any such extensions, renewals and replacements) shall not exceed $300,000,000 at any time outstanding;
(vi) Block B Debt of FCX, PTFI or a Restricted Subsidiary, provided that such Block B Debt satisfies the Block B Conditions;
(vii) Indebtedness under any Hedging Agreement permitted by Section 6.07;
(viii) Permitted FCX Indebtedness;
(ix) Indebtedness of FCX Guaranteed on an unsecured basis by PTFI that, but for such Guarantee, would constitute Permitted FCX Indebtedness, and Indebtedness of PTFI that, but for being the direct obligation of PTFI, otherwise meets the requirements of Permitted FCX Indebtedness, provided that the aggregate principal amount of Indebtedness permitted by this clause (viix) shall not exceed $25,000,000 250,000,000 at any time outstanding;
(viix) Guarantees by the Borrowers or any Restricted Subsidiary of Indebtedness of Unrestricted Subsidiaries (including Guarantees secured by pledges of the China JV in an aggregate principal amount not to exceed $20,000,000 Equity Interests of such Unrestricted Subsidiaries) permitted by Section 6.04(h);
(xi) at any time outstanding; provided that such prior to the Initial Borrowing Availability Date, Indebtedness is (A) secured only by assets consisting of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
(viii) unsecured reimbursement obligations (contingent or otherwise) in respect of letters of credit issued to support by JPMCB for the account of the Borrowers in a stated amount not in excess of $3,000,000;
(xii) unsecured Guarantees of FCX of obligations of the Borrower or a purchaser in an FCX Assisted PTFI Sale to lenders providing financing for such sale in an aggregate amount not at any Restricted Subsidiary incurred time in the ordinary course excess of business; provided that (Ax) the aggregate amount of all cash consideration received by FCX or any Restricted Subsidiary for such letters FCX Assisted PTFI Sale minus (y) the aggregate amount of credit and unreimbursed disbursements in respect thereof shall not at any time exceed $5,000,000 and (B) any disbursement payments theretofore made in respect of any principal obligations under such letter of credit shall be reimbursed in full within three Business Days after such disbursement is madeGuarantee; and
(ixxiii) other Funded Indebtedness if, on the date of the creation, issuance, incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such date.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower Borrowers and the Restricted Subsidiaries and Attributable Debt in respect of sale and leaseback transactions permitted herebypursuant to Section 6.06(c) in an aggregate principal amount not in excess of $25,000,000 at any time outstanding.
(c) Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock), except that (i) Holdings may issue preferred stock or other preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted Subsidiary.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.
Appears in 1 contract
Samples: Credit Agreement (Freeport McMoran Copper & Gold Inc)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term Loans, other than any Incremental Term Loans, and Letters of CreditIndebtedness created under the Loan Documents;
(ii) Indebtedness existing on the Restatement Effective Date date hereof and set forth in Schedule 6.01 and extensions, renewals, refinancings renewals and replacements of any such Indebtedness, provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that do was not increase an obligor with respect to the outstanding Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount thereof (other than by that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any fees or expenses incurred in the refinancing thereofaccrued but unpaid interest and redemption premium thereon), (C) or result in shall not have an earlier maturity date or decreased shorter weighted average life thereofthan the Indebtedness being extended, renewed or replaced and (D) shall not have terms (including covenants, events of default, remedies, redemption provisions and sinking fund provisions, but excluding financial terms such as interest rates and redemption provisions) less favorable in any material respect to the Lenders than the terms of the Indebtedness being extended, renewed or replaced;
(iii) Indebtedness outstanding under the Management Term Loan Credit Agreement and extensions, renewals and replacements of such Indebtedness, provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to Indebtedness being extended, renewed or replaced (unless such obligor is a Subsidiary formed specifically for that purpose), (B) shall not be in a principal amount that exceeds the principal amount of the Borrower to Holdings Indebtedness being extended, renewed or replaced (plus any Restricted Subsidiary accrued but unpaid interest and redemption premium thereon), (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being extended, renewed or replaced, (D) if applicable, shall rank pari passu or junior in right of payment in respect of the Collateral and with the obligations in respect of the Revolving Loans and (E) shall not have terms (including covenants, events of default, remedies, redemption provisions and sinking fund provisions, but excluding financial terms such as interest rates and redemption provisions) less favorable in any Restricted Subsidiary material respect to the Borrower, Holdings or any other Restricted Subsidiary, in each case subject to Section 6.04Lenders than the terms of the Management Term Loan Credit Agreement;
(iv) Additional Mortgage Indebtedness and extensions, renewals and replacements thereof if, on the date of such incurrence or extension, renewal or replacement and after giving effect thereto on a Pro Forma Basis, the Senior Leverage Ratio shall not exceed 5.00 to 1.00;
(v) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary, provided (A) that Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary Loan Party shall be subject to Section 6.04 and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary Loan Party to any Subsidiary that is not a Subsidiary Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent;
(vi) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Restricted Subsidiary of Indebtedness of Holdings, the Borrower or any other Subsidiary, provided that such Guarantees are (A) the Indebtedness so Guaranteed is permitted by this Section 6.04(other than clause (a)(ii) or (a)(viii)), (B) Guarantees by the Borrower or any Subsidiary Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 6.04 and (C) Guarantees permitted under this clause (vi) shall be subordinated to the Obligations of the applicable Subsidiary Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations;
(vA) Indebtedness of the Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vi) 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 (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) 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, provided that such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, and (B) extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase so long as the outstanding principal amount thereof; of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium thereon), provided that the aggregate principal amount of Indebtedness permitted by this clause (vivii) shall not exceed $25,000,000 5,000,000 at any time outstanding;
(viiviii) Indebtedness of any Person that becomes a Subsidiary after the China JV date hereof, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium thereon), provided that the aggregate principal amount of Indebtedness permitted by this clause (viii) shall not exceed $5,000,000 at any time outstanding;
(ix) other unsecured Indebtedness of the Borrower or any Subsidiary in an aggregate principal amount not to exceed exceeding $20,000,000 5,000,000 at any time outstanding; provided that such Indebtedness is (A) secured only by assets of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
(viiix) unsecured reimbursement Indebtedness owed to any Person (including obligations (contingent or otherwise) in respect of letters of credit issued for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to support reimbursement or indemnification obligations of the Borrower or any Restricted Subsidiary to such Person, in each case incurred in the ordinary course of business; provided that ;
(Axi) Indebtedness of the aggregate amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not at Borrower or any time exceed $5,000,000 and (B) any disbursement Subsidiary in respect of any such letter performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees and similar obligations (other than in respect of credit shall be reimbursed other Indebtedness), in full within three Business Days after such disbursement is made; andeach case provided in the ordinary course of business;
(ixxii) Indebtedness in respect of Swap Agreements permitted by Section 6.07;
(xiii) Capital Lease Obligations of the Borrower or any Subsidiary resulting from any arrangement whereby the Borrower or such Subsidiary sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rents or leases such property or other Funded Indebtedness property that it intends to use for substantially the same purpose or purposes as the property sold or transferred if, on the date of the creation, issuance, such incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumedon a Pro Forma Basis, the date such Funded Indebtedness becomes secured by such collateral), (x) the Senior Leverage Ratio is less shall not exceed 5.00 to 1.00; and
(xiv) Guarantees and/or indemnities (other than 4.00 to 1.00 in respect of payment of principal or interest) by the Borrower or any Subsidiary in respect of capital contributions, project completions and cost-overruns and other performance matters (y) if such Indebtedness is Secured Funded Indebtednessincluding environmental, the Secured Leverage Ratio is less than 2.5 to 1.0fraud, misappropriation, bankruptcy and other customary non-recourse carveouts), in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) in connection with investments or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such dateotherwise permitted under this Agreement.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, Documents and the Management Term Loan Credit Agreement and (ii) Indebtedness that would be permitted to be created, incurred or assumed by the Borrower or any Subsidiary under clause Sections 6.01(a)(vi), (a)(iiix), (xi), (xii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted herebyxiv).
(c) Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, issue any preferred stock Equity Interests except in the case of Holdings or other the Borrower, preferred Equity Interests (including that are Qualified Equity Interests or trust preferred securities in an aggregate principal amount not exceeding $150,000,000 at any Disqualified Stock)time outstanding, except provided that (i) Holdings may issue preferred stock or other any such preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted or trust preferred securities issued by clause (a)(ix) of this Section 6.01 as if such clause applied the Borrower to Holdings and (ii) Holdings, for purposes of matching preferred Equity Interests or trust preferred securities issued by Holdings shall be excluded from the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted Subsidiarycalculation of such amount.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and Neither Holdings and nor the Borrower will, nor will not they permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term Loans, other than any Incremental Term Loans, and Letters of CreditIndebtedness created under the Loan Documents;
(ii) [reserved];
(iii) the Existing Subordinated Notes, to the extent not repurchased pursuant to the Debt Tender Offer, in an aggregate principal amount not to exceed $345,000,000 and extensions, renewals and replacements of the Existing Subordinated Notes, provided that such extending, renewal or replacement Indebtedness (A) shall not be in a principal amount that exceeds the principal amount of the Existing Subordinated Notes being extended, renewed or replaced (plus accrued interest and premium thereon), (B) shall not have a maturity date that is earlier than the date that is 180 days after the Tranche B Maturity Date or a weighted average life that is shorter than that of the then-remaining weighted average life of the Tranche B Term Loans, (C) at the time of such extension renewal or replacement, no Default or Event of Default shall have occurred and be continuing and (D) there is no obligor of such Indebtedness that is not either (x) an obligor of such Indebtedness on the Effective Date or (y) otherwise permitted to incur such Indebtedness by another clause of this Section 6.01;
(iv) Indebtedness existing on the Restatement Effective Date and set forth in Schedule 6.01 and extensions, renewals, refinancings renewals and replacements of any such Indebtedness, provided that such extending, renewal or replacement Indebtedness that do (A) shall not increase the outstanding be in a principal amount thereof (other than by that exceeds the principal amount of any fees the Indebtedness being extended, renewed or expenses incurred in the refinancing thereofreplaced (plus accrued interest and premium thereon), (B) or result in shall not have an earlier maturity date or a decreased weighted average life thereofthan the Indebtedness being extended, renewed or replaced, (C) shall be subordinated to the Obligations on the same terms (or, from a Lender’s perspective, better terms) as the Indebtedness being extended, renewed or replaced and (D) there is no obligor of such Indebtedness that is not either (x) an obligor of such Indebtedness on the Effective Date or (y) otherwise permitted to incur such Indebtedness by another clause of this Section 6.01;
(iiiv) Indebtedness of the Borrower owed to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary owed to the Borrower, Holdings or any other Restricted Subsidiary, in each case subject to Section 6.04;
(iv) Guarantees by the Borrower and by any Restricted Subsidiary of Indebtedness of Holdings, the Borrower or any other Subsidiary, provided that Indebtedness of the Borrower owed to any Subsidiary and Indebtedness of any Subsidiary Loan Party owed to the Borrower or any other Subsidiary shall be subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent; provided further that, (A) Indebtedness owed to any Insurance Subsidiary by the Borrower or any other Subsidiary shall be limited in principal amount to the aggregate amount of Investments made in such Guarantees are Insurance Subsidiary pursuant to Section 6.04(xx) and (B) notwithstanding the first proviso above, such Indebtedness shall only be subordinated to the extent permitted by Section 6.04applicable laws or regulations;
(vvi) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, provided that (A) the Indebtedness so Guaranteed is permitted by this Section 6.01, (B) Guarantees permitted under this clause (vi) shall be subordinated to the Obligations of the Borrower or the applicable 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, no Subsidiary shall Guarantee any Indebtedness unless it is a Subsidiary Loan Party;
(vii) Indebtedness of the Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vi) 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 (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) 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 extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (including the principal and any accrued but unpaid interest or premium in respect thereof; ), provided that (A) such Indebtedness 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 (vivii) shall not exceed at any time outstanding the greater of (x) $60,000,000 and (y) 6.0% of Consolidated Tangible Assets as of the end of the immediately preceding fiscal quarter;
(A) Indebtedness of any Person that becomes a Subsidiary after the date hereof, provided that (1) such Indebtedness exists at the time such Person becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary and (2) the aggregate amount of Indebtedness permitted by this clause (viii) (including subclause (B)) shall not exceed $25,000,000 50,000,000 at any time outstanding, and (B) any refinancings, renewals and replacements of any such Indebtedness pursuant to the preceding clause (A) that do not increase the outstanding principal amount (plus accrued interest and premium) thereof;
(ix) 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;
(x) Indebtedness of the Borrower or any 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;
(xi) Indebtedness of any Loan Party pursuant to Swap Agreements permitted by Section 6.07;
(xii) with respect to Holdings, Qualified Holdings Debt; provided that other than with respect to any additional principal amounts resulting from the accrual of pay-in-kind interest, (A) such Indebtedness may only be issued or incurred to the extent that after giving effect to the incurrence of such additional Indebtedness on a Pro Forma Basis, the Holdings Leverage Ratio would be less than 5.50 to 1.00 and (B) no Default has occurred and is continuing or would result therefrom;
(xiii) [reserved];
(xiv) Indebtedness representing deferred compensation to employees of the Borrower and the Subsidiaries incurred in the ordinary course of business;
(xv) Indebtedness in respect of promissory notes issued to physicians, consultants, employees or directors or former employees, consultants or directors in connection with repurchases of Equity Interests permitted by Section 6.08(a)(iii);
(xvi) Indebtedness of any Foreign Subsidiary or any Subsidiary of the Borrower that is not a Loan Party in an amount not to exceed $50,000,000 at any time outstanding;
(viixvii) Indebtedness (x) Permitted Debt Securities so long as no Default or Event of the China JV in an aggregate principal amount not to exceed $20,000,000 at any time outstanding; provided that such Indebtedness Default has occurred and is (A) secured only by assets of the China JV and not by assets of Holdingscontinuing or would arise after giving effect thereto and, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
(viii) unsecured reimbursement obligations (contingent or otherwise) in respect of letters of credit issued to support obligations of the Borrower or any Restricted Subsidiary incurred in the ordinary course of business; provided that (A) the aggregate amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not at any time exceed $5,000,000 and (B) any disbursement in respect of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement is made; and
(ix) other Funded Indebtedness if, on the date of the creation, issuance, incurrence or assumption of such Indebtedness (or, except in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is createdRefinancing Debt Securities, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) on a Pro Forma Basis the Leverage Ratio is less than 4.00 or equal to 5.25 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, as of the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for last day of the most recent period of four fiscal quarters quarter for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect ) prior to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds incurrence of such Funded Permitted Debt Securities and (y) any Refinancing Indebtedness on or within 10 days after such date.in respect of Indebtedness permitted by this clause 6.09(a)(xvii);
(bxviii) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of other Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.or any Subsidiary in an aggregate principal amount not exceeding $200,000,000 at any time outstanding;
(cxix) Neither Holdings nor in the Borrower will, nor will they permit any Restricted Subsidiary to, issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock), except that (i) Holdings may issue preferred stock or other preferred Equity Interests case of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted Subsidiary.
(d) Neither Qualified Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.Floating Rate Notes; and
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term Loans, other than any Incremental Term Loans, (x) Indebtedness created under the Loan Documents and Letters (y) Indebtedness created under the Tranche C Loan Documents not to exceed an aggregate principal amount of Credit$434,800,000;
(ii) (A) the Convertible Notes and (B) Subordinated Refinancing Indebtedness in respect of the Convertible Notes or Additional Subordinated Debt incurred pursuant to this clause (B);
(iii) Indebtedness existing on the Restatement Effective Date date of the Original Credit Agreement and set forth in Schedule 6.01 (other than the Existing Credit Agreement) and refinancings, extensions, renewals, refinancings renewals and replacements of any such Indebtedness, provided that such refinancing, extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that do was not increase an obligor with respect to the outstanding Indebtedness being refinanced, extended, renewed or replaced, (B) shall not be in a principal amount thereof that exceeds the principal amount of the Indebtedness being refinanced, extended, renewed or replaced (other than plus any accrued but unpaid interest and premium or penalty payable by the amount terms of any such Indebtedness thereon and reasonable fees or and expenses incurred in the refinancing thereofassociated therewith), (C) or result in shall not have an earlier maturity date or decreased shorter weighted average life thereofthan the Indebtedness being refinanced, extended, renewed or replaced and (D) if the Indebtedness being refinanced, extended, renewed or replaced is subordinated to the Obligations, such Indebtedness shall be subordinated to the Obligations on the same terms as the Indebtedness being refinanced, extended, renewed or replaced;
(iiiiv) Indebtedness of the Borrower to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings Borrower or any other Restricted SubsidiarySubsidiary (other than Indebtedness of any Broker Dealer Subsidiary to a Subsidiary that is not a Loan Party), in each case provided that (A) Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary Loan Party shall be subject to Section 6.04, (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary Loan Party to any Subsidiary that is not a Subsidiary Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent and (C) Indebtedness of the Tranche C Additional Borrower to Borrower shall be pursuant to an intercompany loan or note (the “Tranche C Additional Borrower Intercompany Loan”) reasonably satisfactory to the Administrative Agent and pledged as Collateral under the Security Documents;
(ivv) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Restricted Subsidiary (other than any Broker Dealer Subsidiary) of Indebtedness of Holdings, the Borrower or any other Subsidiary, provided that such Guarantees are (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(iii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 6.04, (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (D) none of the Convertible Notes or Additional Subordinated Debt shall be Guaranteed by any Subsidiary, unless, in the case of any Additional Subordinated Debt, such Subsidiary is a Loan Party that has Guaranteed the Obligations pursuant to the Collateral Agreement;
(vA) Indebtedness of the Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or (other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vithan any Broker Dealer Subsidiary) 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 (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) 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, provided that such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, and (B) extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase so long as the outstanding principal amount thereof; of such refinancings, extensions, renewals and replacements does not exceed the principal amount of the Indebtedness being refinanced, extended, renewed or replaced (plus any accrued but unpaid interest and premium or penalty payable by the terms of such Indebtedness thereon and reasonable fees and expenses associated therewith), provided that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $25,000,000 20,000,000 at any time outstanding;
(vii) Indebtedness of any Person that is merged or consolidated with and into the China JV Borrower or any Subsidiary (other than a Broker Dealer Subsidiary) or of any Person that otherwise becomes a Subsidiary (other than a Broker Dealer Subsidiary) after the date of the Original Credit Agreement, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium payable by the terms of such Indebtedness thereon), provided that the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $10,000,000 at any time outstanding;
(viii) other unsecured Indebtedness of the Borrower and the Subsidiaries (other than the Broker Dealer Subsidiaries) in an aggregate principal amount not to exceed exceeding $20,000,000 at any time outstanding; , provided that such the aggregate principal amount of Indebtedness is (A) secured only by assets of the China JV and Subsidiaries that are not Subsidiary Loan Parties permitted by assets of Holdings, the Borrower of this clause (viii) shall not exceed $5,000,000 at any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiarytime outstanding;
(viiiix) unsecured reimbursement Indebtedness owed to any Person (including obligations (contingent or otherwise) in respect of letters of credit issued for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to support reimbursement or indemnification obligations of the Borrower or any Restricted Subsidiary to such Person, in each case incurred in the ordinary course of business; ;
(x) Indebtedness of the Borrower or any Subsidiary (other than any Broker Dealer Subsidiary) in respect of performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees and similar obligations (other than in respect of other Indebtedness), in each case provided that in the ordinary course of business;
(xi) Indebtedness in respect of Swap Agreements permitted by Section 6.07;
(xii) (A) the aggregate amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not at any time exceed $5,000,000 and (B) any disbursement in respect of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement Additional Subordinated Debt that is made; and
(ix) other Funded Indebtedness if, issued for cash payable on the date of issuance thereof or as consideration for a Permitted Acquisition, provided that (1) if such Additional Subordinated Debt is issued for cash, the creation, issuance, incurrence or assumption Net Proceeds of such Indebtedness (orAdditional Subordinated Debt are used, in promptly after such Net Proceeds are received by the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral)Borrower, (x) the Leverage Ratio is less than 4.00 to 1.00 and consummate one or more Permitted Acquisitions or (y) to prepay Term Loans pursuant to Section 2.11(a), (2) no Default has occurred and is continuing or would result therefrom and (3) the Borrower is in compliance on a Pro Forma Basis after giving effect to the incurrence of such Additional Subordinated Debt with the covenants contained in Sections 6.12 and 6.13 recomputed as of the last day of the most-recently ended fiscal quarter of the Borrower prior to the issuance of such Additional Subordinated Debt and has delivered to the Administrative Agent a certificate of a Financial Officer to such effect, together with all relevant financial information reasonably requested by the Administrative Agent, including reasonably detailed calculations demonstrating compliance with clause (3) above (which calculations shall, if such Indebtedness is Secured Funded Indebtedness, made as of the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for last day of any fiscal quarter of the most recent period of four fiscal quarters Borrower for which the Borrower has not delivered to the Administrative Agent the financial statements have been and certificate of a Financial Officer required to be delivered pursuant to by Section 5.01(a) or (b) and Section 5.01(c), as applicablerespectively, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicableaccompanied by a reasonably detailed calculation of Consolidated EBITDA and Consolidated Cash Interest Expense for the relevant period) and all (B) Subordinated Refinancing Indebtedness in respect of Additional Subordinated Debt issued pursuant to be prepaid with clause (A) above or this clause (B);
(xiii) Indebtedness arising from the proceeds honoring by a bank or financial institution of a check or similar instrument drawn against insufficient funds in the ordinary course of business, so long as such Funded Indebtedness on is repaid within five Business Days; and
(xiv) Indebtedness of TRF owing to Borrower or within 10 days after such dateanother Subsidiary not to exceed $10,000,000 at any time outstanding.
(b) Holdings The Borrower will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower willnot, nor will they it permit any Restricted Subsidiary to, issue any preferred stock Equity Interests or other any Disqualified Equity Interests, except in the case of the Borrower, (i) preferred Equity Interests that are Qualified Equity Interests, (ii) preferred Equity Interests issued and outstanding on the Effective Date and set forth on Schedule 6.01(b), (iii) preferred Equity Interests (including any Disqualified x) having terms that, taken as a whole, are no less favorable to the Lenders than those of the Series C Preferred Stock), except that as determined in good faith by senior management of the Borrower, (iy) Holdings may issue preferred stock the proceeds of which are used to redeem, repurchase or other preferred Equity Interests retire the outstanding shares of Holdings that are not Disqualified Series C Preferred Stock and Disqualified (z) the aggregate liquidation preference of which is no greater than that of the shares of Series C Preferred Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings being redeemed, repurchased or refinanced and (iiiv) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted SubsidiarySeries D Preferred Stock.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Borrower Company will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term Loans, other than any Indebtedness created under the Loan Documents (including Incremental Term Loans, Loans and Letters of CreditIncremental Revolving Loans incurred in compliance with Section 2.20);
(ii) the New Senior Notes and Guarantees thereof by Subsidiary Loan Parties;
(iii) Indebtedness existing on the Restatement Effective Date date hereof and set forth in Schedule 6.01 and extensions, renewals, replacements and refinancings and replacements of any such Indebtedness (including pursuant to refinancings with the proceeds of Permitted Debt Securities) that do not increase the outstanding principal amount (including, in the case of the Polk County IRBs, the principal amount thereof (other than owned by the amount of any fees or expenses incurred in the refinancing thereofLoan Parties) thereof or result in an earlier maturity date (unless such earlier maturity date is after May 31, 2007) or decreased weighted average life thereofthereof (unless no principal payments are required prior to May 31, 2007);
(iiiiv) Indebtedness of the Borrower Company to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings Company or any other Restricted Subsidiary, in each case ; provided that Indebtedness of any Subsidiary that is not a Loan Party owing to the Company or any Subsidiary Loan Party and Indebtedness of or to any Phosphates Subsidiary shall be subject to Section 6.04;
(ivv) Guarantees by the Borrower Company of Indebtedness of any Subsidiary and by any Restricted Subsidiary of Indebtedness of Holdings, the Borrower Company or any other Subsidiary, ; provided that such Guarantees are permitted by the Company or any Subsidiary Loan Party of Indebtedness of any Subsidiary that is not a Subsidiary Loan Party and Guarantees by any Phosphates Subsidiary shall be subject to Section 6.04;
(v) Indebtedness of the Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vi) Indebtedness of the Borrower Company or any Restricted Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof or result in an earlier maturity date or decreased weighted average life thereof; provided that (A) such Indebtedness is incurred prior to or within 90 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) and clause (vii) below shall not exceed $25,000,000 40,000,000 at any time outstanding;
(vii) Indebtedness of any Person that becomes a Subsidiary after the China JV date hereof; provided that (A) such Indebtedness exists at the time such Person becomes a Subsidiary and is not created in an contemplation of or in connection with such Person becoming a Subsidiary and (B) the aggregate principal amount not of Indebtedness permitted by this clause (vii) and clause (vi) above shall be subject to exceed $20,000,000 at the limitation set forth in clause (vi) above;
(viii) Indebtedness of the Company in respect of Permitted Debt Securities (other than Permitted Debt Securities that are permitted under clause (iii) above); provided that the issuance thereof shall constitute a Prepayment Event;
(ix) Indebtedness of the Company or any time outstandingof its Subsidiaries 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 that such Indebtedness is (A) secured only by assets of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiaryrepaid within two Business Days after being incurred;
(viiix) unsecured reimbursement obligations (contingent Indebtedness of the Company or otherwise) any of its Subsidiaries as an account party in respect of letters of credit issued to support obligations for the account of the Borrower Company or any Restricted Subsidiary incurred such Subsidiary, as the case may be, that either constitute trade letters of credit or are obtained in order to provide security for workers' compensation claims, payment obligations in connection with self- insurance or similar requirements in the ordinary course of business; provided that (A) such Indebtedness is not Guaranteed by any of the aggregate amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not at any time exceed $5,000,000 Company or its Subsidiaries and (B) any disbursement in respect of Indebtedness resulting from a drawing under any such letter of credit shall be reimbursed in full is repaid within three two Business Days after such disbursement is madedrawing;
(xi) obligations of the Company or any of its Subsidiaries in respect of performance bonds and completion, guarantee, surety and similar bonds, in each case obtained in the ordinary course of business to support statutory and contractual obligations (other than Indebtedness) arising in the ordinary course of business;
(xii) industrial revenue bonds or similar tax-exempt Indebtedness of the Company or any of its Subsidiaries incurred to finance the construction or improvement of operations of the Company and its Subsidiaries in an aggregate principal amount not exceeding $50,000,000 at any time outstanding;
(xiii) Indebtedness of Foreign Subsidiaries (other than Foreign Loan Parties) in an aggregate principal amount not exceeding $20,000,000 at any time outstanding; and
(ixxiv) other Funded Indebtedness if, on the date of the creation, issuance, incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such datean aggregate principal amount not exceeding $35,000,000 at any time outstanding.
(b) Holdings The Company will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower willnot, nor will they it permit any Restricted Subsidiary to, issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock)Interests, except that (i) Holdings the Company may issue preferred stock or other preferred that does not constitute a Disqualified Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted SubsidiaryInterest.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.
Appears in 1 contract
Samples: Credit Agreement (Imc Global Inc)
Indebtedness; Certain Equity Securities. (a) The None of Holdings, the Parent Borrower or any Foreign Subsidiary Borrower will, nor will not, and Holdings and the Borrower will not they permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term Loans, Indebtedness created under the Loan Documents and Indebtedness not exceeding $40,000,000 incurred outside the United States that are supported by Letters of Credit minus the amounts outstanding pursuant to clause (xv) of this Section 6.01; provided that (x)(A) Revolving Loans may only be used to (1) finance a Permitted Acquisition (other than the New Castle Acquisition) if, in addition to the satisfaction of all other requirements necessary to effect such Permitted Acquisition set forth herein, after giving effect to such Permitted Acquisition (and any Incremental Term Loansrelated incurrence or repayment of Indebtedness), the Senior Leverage Ratio is less than 2.00 to 1.00 and Letters the amount of CreditRevolving Commitments available for general corporate purposes (other than Permitted Acquisitions) at such time shall be at least $100,000,000 and (2) finance the New Castle Acquisition to the extent permitted under the defined term “New Castle Acquisition” and (B) the amount of Revolving Loans used to finance Permitted Acquisitions (other than the New Castle Acquisition) outstanding at any time shall not exceed $50,000,000 less the amount of Permitted Receivables Financing outstanding under Section 6.01(a)(ii) to finance Permitted Acquisitions and (y) until the Convertible Debentures have been irrevocably repurchased, redeemed, repaid or otherwise retired in full, Revolving Loans outstanding may not exceed the aggregate Revolving Commitments less the amount designated as available for the repurchase, redemption, repayment or retirement of Convertible Debentures pursuant to Section 5.15(b);
(ii) the Permitted Receivables Financing; provided that (x) the Permitted Receivables Financing may only be used to finance a Permitted Acquisition (other than the New Castle Acquisition) if, in addition to the satisfaction of all other requirements necessary to effect such Permitted Acquisition set forth herein, after giving effect to such Permitted Acquisition (and any related incurrence or repayment of Indebtedness), the Senior Leverage Ratio is less than 2.00 to 1.00 and the amount of Revolving Commitments available for general corporate purposes (other than Permitted Acquisitions) at such time shall be at least $100,000,000 and (y) the amount of Permitted Receivables Financing used to finance Permitted Acquisitions (other than the New Castle Acquisition) outstanding at any one time shall not exceed $50,000,000 less the amount of Revolving Loans outstanding under Section 6.01(a)(i) to finance Permitted Acquisitions;
(iii) [intentionally omitted];
(iv) Indebtedness existing on the Restatement Effective Date date hereof and set forth in Schedule 6.01 to the Original Credit Agreement and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than by the amount of any fees or expenses incurred in the refinancing thereof) as specified on such Schedule 6.01 or result in an earlier maturity date or decreased weighted average life thereof;
(iiiv) the Convertible Debentures;
(vi) the Existing Subordinated Notes;
(vii) the Permitted Subordinated Notes and the Permitted Senior Notes; provided that (x) Permitted Subordinated Notes may only be used for the repayment of Revolving Borrowings and obligations arising in respect of the Permitted Receivables Financing if, after giving effect to the incurrence of such Permitted Subordinated Notes, the Senior Leverage Ratio is less than 2.75 to 1.00 and (y) the aggregate amount of proceeds of Permitted Subordinated Notes used for the repayment of Revolving Borrowings and obligations arising in respect of the Permitted Receivables Financing may not exceed $100,000,000;
(viii) Indebtedness of the Parent Borrower to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings Parent Borrower or any other Restricted Subsidiary, in each case ; provided that Indebtedness of any Subsidiary that is not a Domestic Loan Party to the Parent Borrower or any Subsidiary Loan Party shall be subject to Section 6.04;
(ivix) Guarantees by the Parent Borrower of Indebtedness of any Subsidiary and by any Restricted Subsidiary of Indebtedness of Holdings, the Parent Borrower or any other Subsidiary, ; provided that such (a) Guarantees are permitted by the Parent Borrower or any Subsidiary Loan Party of Indebtedness of any Subsidiary that is not a Domestic Loan Party shall be subject to Section 6.046.04 and (b) this clause (ix) shall not apply to Guarantees of the Existing Subordinated Notes, Permitted Subordinated Notes, the Permitted Senior Notes or the TriMas Notes;
(vx) Guarantees by Holdings, the Parent Borrower or any Subsidiary, as the case may be, in respect of the Existing Subordinated Notes, Permitted Subordinated Notes and the Permitted Senior Notes; provided that none of Holdings, the Parent Borrower or any Subsidiary, as the case may be, shall Guarantee the Existing Subordinated Notes, the Permitted Subordinated Notes or the Permitted Senior Notes unless (A) it also has Guaranteed the Obligations pursuant to the Guarantee Agreement and (B) such Guarantee of the Existing Subordinated Notes or the Permitted Subordinated Notes is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Existing Subordinated Notes;
(xi) Indebtedness of the Parent Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vi) 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 (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof or result in an earlier maturity date or decreased weighted average life thereof; provided that (A) such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement and (B) the aggregate principal amount of Indebtedness permitted by this clause (vixi) shall not exceed $50,000,000 at any time outstanding;
(xii) Indebtedness arising as a result of an Acquisition Lease Financing;
(xiii) Indebtedness of any Person that becomes a Subsidiary after the date hereof; provided that (A) such Indebtedness exists at the time such Person becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary and (B) the aggregate principal amount of Indebtedness permitted by this clause (xiii) shall not exceed $25,000,000 at any time outstanding, less the liquidation value of any outstanding Assumed Preferred Stock;
(viixiv) Indebtedness of Holdings, the China JV Parent Borrower or any Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety appeal or similar bonds and completion guarantees provided by Holdings, the Parent Borrower and the Subsidiaries in the ordinary course of their business; and
(xv) other unsecured Indebtedness of Holdings, the Parent Borrower or any Subsidiary in an aggregate principal amount not to exceed exceeding $20,000,000 at any time outstanding; provided that such outstanding minus the amount of Indebtedness is incurred outside the United States supported by Letters of Credit in excess of $20,000,000, less the liquidation value of any applicable Qualified Holdings Preferred Stock issued and outstanding pursuant to clause (Ab) secured only by assets of the China JV and not by assets definition of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
(viii) unsecured reimbursement obligations (contingent or otherwise) in respect of letters of credit issued to support obligations of the Borrower or any Restricted Subsidiary incurred in the ordinary course of business; provided that (A) the aggregate amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not at any time exceed $5,000,000 and (B) any disbursement in respect of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement is made; and
(ix) other Funded Indebtedness if, on the date of the creation, issuance, incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such dateQualified Holdings Preferred Stock.
(b) Holdings will not createNone of Holdings, incur, assume the Parent Borrower or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Foreign Subsidiary Borrower will, nor will they permit any Restricted Subsidiary to, issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock)Interests, except that (i) Holdings may issue Preferred Stock, (ii) Qualified Holdings Preferred Stock, (iii) Assumed Preferred Stock and (iv) preferred stock or other preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted held by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdings, the Parent Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted Subsidiary.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.
Appears in 1 contract
Samples: Credit Agreement (Metaldyne Corp)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and Holdings and the Borrower nor will not it permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term Loans, other than any Incremental Term Loans, and Letters of CreditIndebtedness created under the Loan Documents;
(ii) Indebtedness existing on the Restatement Effective Date date hereof and set forth in Schedule 6.01 of the Disclosure Letter and extensions, renewals, replacements or refinancings and replacements of any such Indebtedness, provided that such extending, renewal, replacement or refinancing Indebtedness (A) shall not be Indebtedness of an obligor that do was not increase an obligor with respect to the outstanding Indebtedness being extended, renewed or replaced, (B) shall not be in a principal amount thereof (other than or accreted value, if applicable) that exceeds the principal amount (or accreted value, if applicable) of the Indebtedness being extended, renewed, replaced or refinanced (plus any accrued but unpaid interest and redemption premium payable by the amount terms of any such Indebtedness thereon and other reasonable amounts paid, and reasonable fees and expenses incurred, in connection with such extension, renewal, replacement or expenses incurred in the refinancing thereofrefinancing), (C) or result in shall not have an earlier maturity date or decreased shorter weighted average life thereofthan the Indebtedness being extended, renewed, replaced or refinanced, (D) shall be subordinated to the Obligations to the extent that and on terms at least as favorable in all material respects to the Secured Parties as the Indebtedness being extended, renewed, replaced or refinanced and (E) shall not have terms (including covenants, events of default, remedies, redemption provisions and sinking fund provisions, but excluding financial terms such as interest rates and redemption provisions), taken as a whole, materially less favorable to the Lenders than the terms of the Indebtedness being extended, renewed, replaced or refinanced, taken as a whole;
(iii) Indebtedness of the Borrower to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings Borrower or any other Restricted Subsidiary, in each case provided that (A) Indebtedness of any Restricted Subsidiary that is not a Loan Party to the Borrower or any Subsidiary Loan Party shall be subject to Section 6.046.04 and (B) Indebtedness of the Borrower to any Restricted Subsidiary and Indebtedness of any Subsidiary Loan Party to any Restricted Subsidiary that is not a Subsidiary Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent (it being understood and agreed that the terms set forth in the subordination agreement attached as Exhibit E are satisfactory to the Administrative Agent);
(iv) Guarantees by the Borrower of Indebtedness of any Restricted Subsidiary and by any Restricted Subsidiary of Indebtedness of Holdings, the Borrower or any other Restricted Subsidiary, provided that such Guarantees are (A) the Indebtedness so Guaranteed is permitted by this Section 6.04;
(vother than clause (a)(ii) Indebtedness of or (a)(vi)), (B) Guarantees by the Borrower or any Subsidiary Loan Party of Indebtedness of any Restricted Subsidiary in respect that is not a Loan Party shall be subject to Section 6.04, (C) Guarantees permitted under this clause (iv) shall be subordinated to the Obligations of workers’ compensation claimsthe applicable Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (D) none of the Senior Unsecured Debt (including any Senior Unsecured Refinancing Indebtedness) or Subordinated Debt (including any Subordinated Refinancing Indebtedness) shall be Guaranteed by any Subsidiary, self-insurance obligations, performance bonds, surety, appeal unless such Subsidiary is a Loan Party that has Guaranteed the Obligations pursuant to the Collateral Agreement or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrencea Foreign Security Document;
(viA) Indebtedness of the Borrower or any Restricted Subsidiary incurred to finance the acquisition, construction construction, repair, replacement or improvement of any fixed or capital assets, including Capital Lease Obligations, Synthetic Lease Obligations (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed by the Borrower or any Restricted Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets (including any replacement thereof, and additions and accessions to such asset and the proceeds and products thereof (and any customary security deposits made in connection therewith)) prior to the acquisition thereof, provided that such Indebtedness is incurred prior to or within 90 days after such acquisition (or, if applicable, lease) or the completion of such construction, repair, replacement or improvement, and (B) extensions, renewals, replacements and refinancings and replacements of any such Indebtedness that do not increase so long as the outstanding principal amount thereof(or accreted value, if applicable) of such extensions, renewals, replacements and refinancings does not exceed the principal (or accreted value, if applicable) of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium payable by the terms of such Indebtedness thereon and other reasonable amounts paid, and reasonable fees and expenses incurred, in connection with such extension, renewal, replacement or refinancing); provided further that the aggregate principal amount of Indebtedness permitted by this clause (viv) shall not exceed the greater of (x) $25,000,000 and (y) 2.00% of Total Assets (determined as of the last day of the most-recently ended fiscal quarter of the Borrower prior to each incurrence of Indebtedness pursuant to this clause (v), with such determination remaining in effect until the next such incurrence), in each case at any time outstanding;
(vi) Indebtedness of any Person that becomes a Restricted Subsidiary after the date hereof (other than by designation as a Restricted Subsidiary pursuant to Section 5.13) or is merged with and into the Borrower or any Restricted Subsidiary, provided that such Indebtedness exists at the time such Person becomes a Restricted Subsidiary or is merged with and into the Borrower or such Restricted Subsidiary, as the case may be, and is not created in contemplation of or in connection with such Person becoming a Restricted Subsidiary or being merged with and into the Borrower or such Restricted Subsidiary, as the case may be, and extensions, renewals, replacements and refinancings of any such Indebtedness so long as the principal amount (or accreted value, if applicable) of such extensions, renewals, replacements and refinancings does not exceed the principal (or accreted value, if applicable) of the Indebtedness being extended, renewed, replaced or refinanced (plus any accrued but unpaid interest and redemption premium payable by the terms of such Indebtedness thereon and other reasonable amounts paid, and reasonable fees and expenses incurred, in connection with such extension, renewal, replacement or refinancing); provided further that, immediately after giving effect to such incurrence of Indebtedness pursuant to this clause (vi), either (x) the Borrower would be permitted to incur at least $1.00 of additional Senior Unsecured Debt pursuant to clause (xii) of this Section 6.01(a) or (y) each of the Senior Leverage Ratio and the Total Leverage Ratio would be equal to or lower than the Senior Leverage Ratio and the Total Leverage Ratio, respectively, immediately prior to such incurrence of Indebtedness pursuant to this clause (vi);
(vii) other unsecured Indebtedness in an aggregate principal amount not exceeding $35,000,000 at any time outstanding;
(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 China JV Borrower or any Restricted Subsidiary (including obligations in respect of letters of credit for the benefit of the issuer thereof) in respect of performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees and similar obligations (other than in respect of other Indebtedness), in each case provided in the ordinary course of business;
(x) Indebtedness in respect of Swap Agreements permitted by Section 6.07;
(xi) (A) Subordinated Debt, provided that (1) no Default has occurred and is continuing or would result therefrom and (2) immediately after giving effect to each such incurrence and the application of the proceeds therefrom, the Total Leverage Ratio shall not be greater than 5.00 to 1.00 and the Borrower shall have delivered to the Administrative Agent a certificate of its Financial Officer to such effect, together with all relevant financial information reasonably requested by the Administrative Agent, including reasonably detailed calculations demonstrating compliance with this clause (2) (which calculations shall, if made as of the last day of any fiscal quarter of the Borrower for which the Borrower has not delivered to the Administrative Agent the financial statements and certificate of a Financial Officer required to be delivered by Section 5.01(a) or (b) and Section 5.01(c), respectively, be accompanied by a reasonably detailed calculation of Consolidated EBITDA for the relevant period) and (B) Subordinated Refinancing Indebtedness in respect of Subordinated Debt issued pursuant to clause (A) above or this clause (B);
(A) Senior Unsecured Debt, provided that (1) no Default has occurred and is continuing or would result therefrom and (2) immediately after giving effect to each such incurrence and the application of the proceeds therefrom, (x) the Senior Leverage Ratio shall not be greater than 3.75 to 1.00 (which ratio shall be reduced to 3.50 to 1.00 on and after the first anniversary of the Effective Date) and (y) the Total Leverage Ratio shall not be greater than 5.00 to 1.00, and the Borrower shall have delivered to the Administrative Agent a certificate of its Financial Officer to such effect, together with all relevant financial information reasonably requested by the Administrative Agent, including reasonably detailed calculations demonstrating compliance with this clause (2) (which calculations shall, if made as of the last day of any fiscal quarter of the Borrower for which the Borrower has not delivered to the Administrative Agent the financial statements and certificate of a Financial Officer required to be delivered by Section 5.01(a) or (b) and Section 5.01(c), respectively, be accompanied by a reasonably detailed calculation of Consolidated EBITDA for the relevant period) and (B) Senior Unsecured Refinancing Indebtedness in respect of Senior Unsecured Debt issued pursuant to clause (A) above or this clause (B);
(xiii) Indebtedness of Restricted Subsidiaries that are Foreign Subsidiaries in an aggregate principal amount not to exceed the greater of (x) $20,000,000 25,000,000 and (y) 2.00% of Total Assets (determined as of the last day of the most-recently ended fiscal quarter of the Borrower prior to each incurrence of Indebtedness pursuant to this clause (xiii), with such determination remaining in effect until the next such incurrence), in each case at any time outstanding; ;
(xiv) Indebtedness arising in connection with customary cash management services and from the honoring by a bank or financial institution of a check, draft or similar instrument drawn against insufficient funds, in each case in the ordinary course of business, provided that such Indebtedness is (A) secured only by assets of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiaryextinguished within five Business Days after its incurrence;
(viiixv) unsecured reimbursement obligations (contingent or otherwise) in respect of letters of credit issued Indebtedness representing deferred compensation to support obligations employees of the Borrower or any Restricted Subsidiary incurred in the ordinary course of business; provided that ;
(xvi) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to current or former officers, directors or employees or to their respective estates, spouses or former spouses, in each case to finance the purchase or redemption of Equity Interests (or any option, warrant or other right to acquire any Equity Interests) permitted by Section 6.08(a)(iii);
(xvii) customer deposits and advance payments received by the Borrower or any Restricted Subsidiary in the ordinary course of business from customers for goods or services purchased in the ordinary course of business;
(xviii) Indebtedness of the Borrower or any Restricted Subsidiary consisting of (A) the aggregate amount financing of all such letters of credit and unreimbursed disbursements in respect thereof shall not at any time exceed $5,000,000 and insurance premiums or (B) any disbursement take-or-pay obligations contained in respect supply arrangements, in each case incurred in the ordinary course of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement is madebusiness; and
(ixxix) other Funded Indebtedness if, on the date of the creationBorrower or any Restricted Subsidiary in respect of letters of credit, issuancebank guarantees, incurrence bankers’ acceptances, warehouse receipts or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0similar instruments, in each case calculated based issued or created in the ordinary course of business, in an aggregate outstanding amount not to exceed $5,000,000 (which amount shall be increased to $35,000,000 when the Revolving Commitments have expired or been terminated, provided that, at any time on Consolidated EBITDA and after the date on which the Revolving Commitments have so expired or been terminated, the aggregate principal amount of Indebtedness permitted under this clause (xix) shall be reduced by the aggregate amount of Letters of Credit outstanding hereunder at such time). Notwithstanding anything herein to the contrary, Restricted Subsidiaries that are not Loan Parties (including, for the most recent period avoidance of four fiscal quarters for which financial statements have been delivered pursuant to doubt, any entity that becomes a Restricted Subsidiary as contemplated by clause (vi) of this Section 5.01(a6.01(a) but does not become a Loan Party in accordance with Sections 5.11 and 5.12) may not incur Indebtedness under clauses (vi), (vii) or (b)xiii) of this Section 6.01(a) if, as applicable, determined immediately after giving effect to such Funded incurrence and the application of the proceeds therefrom, the aggregate principal amount of Indebtedness of such Restricted Subsidiaries incurred pursuant to be createdclauses (vi), issued, incurred or assumed on such date (or becoming so secured on such date, as applicablevii) and all Indebtedness to be prepaid with the proceeds (xiii) of such Funded Indebtedness on or within 10 days after such datethis Section 6.01(a), collectively, would exceed $40,000,000.
(b) Holdings The Borrower will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower willnot, nor will they it permit any Restricted Subsidiary to, issue any preferred stock Equity Interests or other any Disqualified Equity Interests, except in the case of the Borrower, preferred Equity Interests (including any Disqualified Stock), except that (i) Holdings may issue preferred stock or other preferred are Qualified Equity Interests of Holdings that are not Disqualified and the Series B Preferred Stock and Disqualified Stock if such issuance would be permitted acquired by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted Subsidiary.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed Sponsor pursuant to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as CollateralInvestment Agreement.
Appears in 1 contract
Samples: Credit Agreement (Palm Inc)
Indebtedness; Certain Equity Securities. (a) The Parent ---------------------------------------- Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term Loans, other than any Incremental Term Loans, and Letters of CreditIndebtedness created under the Loan Documents;
(ii) Indebtedness existing on the Restatement Effective Date and set forth in Schedule 6.01 and extensions, renewals, refinancings and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than by the amount of any fees or expenses incurred in the refinancing thereof) or result in an earlier maturity date or decreased weighted average life thereofSubordinated Debt;
(iii) Indebtedness in an aggregate principal amount of up to $25,000,000 that constitutes Indebtedness of Foreign Subsidiaries; provided -------- that all such Indebtedness shall be repaid in its entirety on or prior to the date that is five Business Days after the Effective Date;
(iv) Indebtedness of the Parent Borrower to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings Parent Borrower or any other Restricted Subsidiary, in each case ; provided that -------- Indebtedness of any Subsidiary that is not a Subsidiary Loan Party to the Parent Borrower or any Subsidiary Loan Party shall be subject to Section 6.04;
(ivv) Guarantees by the Parent Borrower of Indebtedness of any Subsidiary and by any Restricted Subsidiary of Indebtedness of Holdings, the Parent Borrower or any other Subsidiary, ; provided that such (i) Guarantees are permitted by Section 6.04;
(v) the Parent Borrower -------- or any Subsidiary Loan Party of Indebtedness of the Borrower or any Restricted Subsidiary in respect that is not a Subsidiary Loan Party shall be subject to Section 6.04 and (ii) a Subsidiary that is not a Subsidiary Loan Party shall not Guarantee any Indebtedness of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrencea Loan Party;
(vi) Indebtedness of the Parent Borrower or any Restricted Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and 107 extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof or result in an earlier maturity date or decreased weighted average life thereof; provided that (A) such Indebtedness is incurred prior to or within 90 -------- 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 exceed $25,000,000 20,000,000 at any time outstanding;
(vii) Indebtedness of any Person that becomes a Subsidiary after the China JV Effective Date; provided that (A) such Indebtedness exists at -------- the time such Person becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary and (B) the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $30,000,000 at any time outstanding;
(viii) Indebtedness of Foreign Subsidiaries of the Parent Borrower for working capital purposes (including in respect of overdrafts) not exceeding, as to all such Foreign Subsidiaries, $10,000,000 in aggregate principal amount at any time outstanding;
(ix) Indebtedness of the Parent Borrower incurred to finance the consideration payable in connection with Permitted Acquisitions; provided that (A) any Permitted Acquisitions that are to be financed -------- with any such Indebtedness must be consummated within six months before or six months after the date of issuance of such Indebtedness (and, if not consummated on or before such date of issuance, the proceeds of such Indebtedness shall be deposited with the Administrative Agent until so used and, to the extent such proceeds are not applied to Permitted Acquisitions within such six-month period, such proceeds shall be applied to prepay Term Borrowings as provided in Section 2.11(c)), (B) such Indebtedness is subordinated to the Obligations on terms no less favorable to the Lenders than the Subordinated Debt and otherwise satisfactory to the Administrative Agent (including that no payments shall be required in respect of such Indebtedness, whether of principal, interest or otherwise, at any time that a Default has occurred and is continuing), (C) the stated maturity thereof shall be on or after the date that is six months after the Tranche B Term Loan Maturity Date, and no scheduled or other mandatory payments of principal shall be required prior to such date, (D) the other terms and conditions thereof shall be no less 108 favorable to the Lenders than the terms and conditions contained in the Subordinated Debt Documents and such other terms and conditions shall be otherwise satisfactory to the Administrative Agent, (E) the amount of Indebtedness permitted by this clause (ix) at any time outstanding shall not exceed the sum of $50,000,000 plus the aggregate principal amount of Term Loans prepaid with the proceeds of such Indebtedness as provided in clause (A) above or clause (G)(3) below, (F) the Parent Borrower and the Subsidiaries are in compliance, after giving effect to the Indebtedness to be incurred pursuant to this clause (ix) and to such Permitted Acquisition, with the covenants contained in Sections 6.12 and 6.13 recomputed as at the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available as if such Indebtedness had been incurred and such Permitted Acquisition had been consummated on the first day of each relevant period for testing such compliance, and (G) to the extent that any such Indebtedness (or portion thereof) is incurred to finance any Permitted Acquisitions consummated prior to the date of issuance of such Indebtedness, the Parent Borrower shall (1) certify to the Administrative Agent on the date of such issuance that such Indebtedness (or portion, as applicable) is being incurred to finance consideration paid for Permitted Acquisitions within six months prior to such date that was previously financed with Revolving Loans, which certificate shall identify the Permitted Acquisitions so financed, (2) apply the net proceeds of such Indebtedness (or portion thereof, as applicable) to prepay Revolving Loans outstanding on such date (but without reducing Revolving Commitments) and (3) if such net proceeds exceed the amount of Revolving Loans then outstanding, apply such excess to prepay Term Loans as provided in Section 2.11(c);
(x) Indebtedness of Armkel Company (Italy) or any of its Subsidiaries in an aggregate principal amount not to exceed exceeding (Euro)6,000,000; and
(xi) other unsecured Indebtedness in an aggregate principal amount not exceeding $20,000,000 25,000,000 at any time outstanding; provided that such Indebtedness is (A) secured only by assets of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
(viii) unsecured reimbursement obligations (contingent or otherwise) in respect of letters of credit issued to support obligations of the Borrower or any Restricted Subsidiary incurred in the ordinary course of business; provided that (A) the aggregate amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not at any time exceed $5,000,000 and (B) any disbursement in respect of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement is made; and
(ix) other Funded Indebtedness if, on the date of the creation, issuance, incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such date.
(b) Holdings The Parent Borrower will not create, incur, assume or permit to exist issue any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower willDisqualified Stock, nor will they it permit any Restricted Subsidiary to, to issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock), except that (i) Holdings may issue preferred stock or other preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted SubsidiaryInterests.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.
Appears in 1 contract
Samples: Credit Agreement (Armkel LLC)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and Holdings and the Borrower nor will not it permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term Loans, other than any Incremental Term Loans, and Letters of CreditIndebtedness created under the Loan Documents;
(ii) Indebtedness existing on the Restatement Effective Date and set forth in Schedule 6.01 and extensions, renewals, refinancings and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than by the amount of any fees or expenses incurred in the refinancing thereof) or result in an earlier maturity date or decreased weighted average life thereof[reserved];
(iii) (A) Indebtedness of existing on the Borrower Closing Date and set forth on Schedule 6.01 and (B) any Permitted Refinancing Indebtedness with respect to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings or any other Restricted Subsidiary, in each case subject to Section 6.04such Indebtedness;
(iv) Guarantees by any Specified Vendor Receivables Financings in existence on the Borrower Closing Date and by any Restricted Subsidiary of Permitted Refinancing Indebtedness of Holdings, the Borrower or any other Subsidiary, provided that such Guarantees are permitted by Section 6.04in respect thereof;
(v) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any Restricted other Subsidiary; provided that Indebtedness of any Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal that is not a Loan Party or similar bonds any Subsidiary Loan Party for which the Collateral and completion or other financial guarantees provided by Guarantee Requirement has not been satisfied to the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect or any Subsidiary Loan Party shall be subject to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrenceSection 6.04;
(vi) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary; provided that Guarantees by the Borrower or any Subsidiary Loan Party of Indebtedness of any Subsidiary that is not a Loan Party or any Subsidiary Loan Party for which the Collateral and Guarantee Requirement has not been satisfied shall be subject to Section 6.04;
(vii) Indebtedness arising pursuant to the Permitted Sale and Leaseback Transaction in an aggregate amount not to exceed $6,000,000 at any time outstanding;
(viii) 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 (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof or result in an earlier maturity date or decreased weighted average life thereof; provided that (A) such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement and (B) the aggregate principal amount of Indebtedness permitted by this clause (viviii) after the Closing Date shall not exceed $25,000,000 10,000,000 at any time outstanding;
(viiix) Indebtedness arising in connection with any retention of title arrangements (verlängerter Eigentumsvorbehalt) made in the ordinary course of business;
(x) Indebtedness arising under a declaration of joint and several liability used for the purpose of section 2:403 of the Dutch Civil Code (and any residual liability under such declaration arising pursuant to section 2:404(2) of the Dutch Civil Code);
(xi) Indebtedness of the China JV Borrower or any Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety appeal or similar bonds and completion guarantees provided by the Borrower and the Subsidiaries in the ordinary course of their business;
(A) Indebtedness arising pursuant to the ABN AMRO Factoring Agreement and any other financings incurred by Foreign Subsidiaries in respect of accounts receivable and/or inventory and/or other current assets in an aggregate principal amount not exceeding $25,000,000 at any time outstanding and guarantees in respect thereof, and (B) Permitted Refinancing Indebtedness in respect of the foregoing;
(xiii) Indebtedness incurred by Foreign Subsidiaries that are not required to exceed be Loan Parties in an aggregate amount not exceeding $20,000,000 5,000,000 at any time outstanding; provided that the Net Proceeds thereof are applied in accordance with Section 2.11(c);
(xiv) 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 (A) secured only by assets extinguished within 10 days of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiaryincurrence;
(viiixv) unsecured reimbursement Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business;
(xvi) 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;
(xvii) 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 (contingent in an amount similar to those offered for comparable services in the financial industry) or otherwiseother 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, obligations, including obligations under Bank Products (as defined in the ABL Credit Agreement as in effect on the date hereof) in respect of letters of credit issued to support obligations other than Hedging Agreements, of the Borrower or any Restricted Subsidiary and its Subsidiaries incurred in the ordinary course of business;
(xviii) [reserved];
(xix) payment obligations of or Guarantees by the Borrower or any Subsidiary Loan Party with respect to any Hedging Agreement permitted under Section 6.07 hereof; provided that if such Hedging Agreement is related to interest rates, (A) such Hedging Agreement shall relate to payment obligations on Indebtedness otherwise permitted to be incurred by the Loan Documents and (B) the notional amount of such Hedging Agreement shall not exceed the principal amount of the Indebtedness to which such Hedging Agreement relates;
(xx) Indebtedness of the Borrower or any Subsidiary Loan Party under the ABL Credit Agreement in an aggregate principal amount at any one time outstanding not to exceed $99,000,000, subject to Section 6.11, and any replacement or refinancing thereof; provided that (A) the aggregate amount Borrower will not, and will not permit any Subsidiary to, create, grant or permit to exist any Lien on the ABL Priority Collateral that is contractually subordinated (including pursuant to a last-out facility for Indebtedness for borrowed money) or junior in priority to the Liens on the ABL Priority Collateral securing any of all the “Loans” or any other “Obligations” (each as defined in the ABL Credit Agreement), unless such letters of credit Lien on the ABL Priority Collateral is also contractually subordinated or junior in priority, in the same manner and unreimbursed disbursements in respect thereof to the same extent, to the Liens on ABL Priority Collateral securing the Obligations; it being understood and agreed that this proviso shall not at restrict any time exceed $5,000,000 refinancing or replacement of the ABL Credit Agreement being secured by a first priority lien on ABL Priority Collateral and (B) any disbursement original issue discount, upfront, closing, arrangement, commitment, agency, underwriting, or similar fees, in respect all cases in connection with the closing of the initial commitment or initial syndication of any such letter replacement or refinancing of credit the ABL Credit Agreement shall be reimbursed customary fees consistent with fees charged in full within three Business Days asset-based revolving loans having advance rates similar to the advance rates under the ABL Loan Documents as in effect on the date hereof;
(xxi) Indebtedness of the Borrower in an amount not to exceed $15,000,000 at any time outstanding; provided that (a) 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 disbursement Indebtedness, 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, and all interest payments thereunder shall be made in kind and shall not be made in cash, (b) such Indebtedness is madenot Guaranteed by any Subsidiary of the Borrower other than the Loan Parties (which Guarantees shall be permitted only to the extent permitted by Section 6.01(a)(vi)), (c) such Indebtedness shall not have any financial maintenance covenants, (d) 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 and (e) such Indebtedness is subordinated to the Obligations on terms reasonably acceptable to the Required Lenders;
(xxii) Indebtedness of the Borrower in an amount not to exceed $15,000,000 at any time outstanding; provided that (a) 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, (b) such Indebtedness is not Guaranteed by any Subsidiary of the Borrower other than the Loan Parties (which Guarantees shall be permitted only to the extent permitted by Section 6.01(a)(vi)), (c) such Indebtedness shall not have any financial maintenance covenants, (d) 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, and (e) such Indebtedness is subordinated to the Obligations on terms reasonably acceptable to the Required Lenders;
(xxiii) Indebtedness of the Borrower under the Convertible Notes outstanding on the Closing Date after giving effect to the Transactions; and
(ix) other Funded Indebtedness if, on the date of the creation, issuance, incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (xxxiv) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such datePPP Loan.
(b) Holdings The Borrower will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower willnot, nor will they it permit any Restricted Subsidiary to, issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock), except that (i) Holdings may issue preferred stock or other preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted Subsidiary.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term Loans, other than any Incremental Term Loans, and Letters of CreditIndebtedness created under the Loan Documents;
(ii) (x) The 2019 Notes, the 2019 Convertible Notes, the New Notes, and the other Indebtedness existing on the Restatement Effective Date date hereof and set forth in Schedule 6.01 (other than any Indebtedness permitted by Section 6.01(a)(xv) and Indebtedness of the Borrower listed on such Schedule) and extensions, renewals, refinancings renewals and replacements of any such Indebtedness, provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that do was not increase an obligor with respect to the outstanding Indebtedness being extended, renewed or replaced, (B) shall not be in a principal amount thereof that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (other than plus any accrued but unpaid interest and redemption premium payable by the amount terms of any fees or expenses incurred in the refinancing thereofsuch Indebtedness thereon), (C) or result in shall not have an earlier maturity date or decreased shorter weighted average life thereofthan the Indebtedness being extended, renewed or replaced and (D) shall be subordinated to the Obligations on terms at least as favorable to the Lenders as the subordination terms (if any) of the Indebtedness being extended, renewed or replaced and (y) (I) prior to the 2016 Springing Maturity Date, the 2016 Notes (including the guarantees in respect thereof existing on the Effective Date) and (II) prior to the 2017 Springing Maturity Date, the 2017 Notes (including the guarantees in respect thereof existing on the Effective Date);
(iii) Indebtedness of the Borrower to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings or any other Restricted Subsidiary, in each case subject to Section 6.04;
(iv) Guarantees by the Borrower and by any Restricted Subsidiary of Indebtedness of Holdings, the Borrower or any other Subsidiary, provided that such Guarantees are permitted by (A) Indebtedness of any Subsidiary to the Borrower shall be subject to Section 6.046.04 and (B) Indebtedness of the Borrower to any Subsidiary shall be subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent;
(viv) Guarantees (A) by the Borrower of Indebtedness of any Subsidiary that is permitted by this Section and (B) by any Subsidiary of Indebtedness of any other Subsidiary that is permitted by this Section (other than clause (a)(ii) and (a)(xv));
(A) Indebtedness of the Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vi) 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, Synthetic Lease Obligations (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) 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, provided that such Indebtedness is incurred prior to or within 270 days after such acquisition or the completion of such construction or improvement, and (B) extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase so long as the outstanding principal amount thereof; of such extensions, renewals and replacements does not exceed the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium payable by the terms of such Indebtedness thereon), provided that no Indebtedness may be incurred under this clause (v) if, after giving effect to such incurrence, the aggregate principal amount of Indebtedness permitted then outstanding under this clause (v) together with all Indebtedness under clause (a)(vi) of this Section that isor secured by a Lien orLiens incurred by a Subsidiarypursuant to clauses (e) and (i) of Section 6.02, exceeds $300,000,000 as of the date of such incurrence;
(vi) Indebtedness of the Borrower or any Subsidiary, provided that (A) the Borrower is in compliance, on a Pro Forma Basis after giving effect to the incurrence of such Indebtedness as of the last day of the most-recently ended fiscal quarter of the Borrower, with the Financial Covenants, and (B) no Indebtedness of any Subsidiary may be incurred under this clause (vi) shall not exceed if, after giving effect to such incurrence, the aggregate principal amount of Indebtedness of Subsidiaries then outstanding under this clause (vi), together with (1) the aggregate principal amount of Indebtedness of the Borrower then outstanding under this clause (vi) that is secured by a Lien on any assets of the Borrower that is incurred pursuant to clause (i) of Section 6.02 and (2) the aggregate principal amount of Indebtedness then outstanding under clause (a)(v) of this Section, or secured by Liens incurred pursuant to clause (e) of Section 6.02, exceeds $25,000,000 at any time outstanding300,000,000;
(vii) Indebtedness of the China JV in an aggregate principal amount not owed to exceed $20,000,000 at any time outstanding; provided that such Indebtedness is Person (A) secured only by assets of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
(viii) unsecured reimbursement including obligations (contingent or otherwise) in respect of letters of credit issued for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to support reimbursement or indemnification obligations of the Borrower or any Restricted Subsidiary to such Person, in each case incurred in the ordinary course of business; provided that ;
(Aviii) Indebtedness of the aggregate amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not at Borrower or any time exceed $5,000,000 and (B) any disbursement Subsidiary in respect of performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees and similar obligations (other than in respect of other Indebtedness), in each case provided in the ordinary course of business;
(ix) Indebtedness in respect of Swap Agreements not entered into for speculative purposes;
(x) Indebtedness or other obligations arising from products and services offered by Bank Regulated Subsidiaries, Broker Dealer Regulated Subsidiaries or Insurance Regulated Subsidiaries in the ordinary course including, but not limited to, deposits, CDs, prepaid forward contracts, swaps, exchangeable debt securities, foreign currency purchases or sales and letters of credit, customer activities and clearing and clearing-related activities (including, in each case, Indebtedness to finance such activities);
(xi) Indebtedness or other obligations incurred in the ordinary course arising from margin lending, Stock Loan activities, customer activities, clearing and clearing-related activities or foreign currency settlement obligations of a Broker Dealer Regulated Subsidiary (including, in each case, Indebtedness to finance such activities);
(xii) Indebtedness arising from agreements of the Borrower or a Subsidiary providing for indemnification, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the disposition of any business, assets or a Subsidiary, other than Guarantees of Indebtedness incurred by any Person acquiring all or any portion of such letter business, assets or a Subsidiary for the purpose of credit shall be reimbursed financing such acquisition;
(xiii) [Reserved];
(xiv) advances from a Federal Home Loan Bank, a Federal Reserve Bank, Xxxxxx Mae or another institution similar to any of the foregoing, repurchase and reverse repurchase agreements relating to Investment Securities, medium term notes, treasury tax and loan balances, special direct investment balances, bank notes, commercial paper, term investment option balances, brokered certificates of deposit, dollar rolls and federal funds purchased, in full within three Business Days after such disbursement is madeeach case incurred in the ordinary course of a Regulated Subsidiary’s business; and
(ixxv) other Funded Indebtedness ifof a Bank Regulated Subsidiary consisting of trust preferred or similar securities, in each case, outstanding on the date Effective Date (it being understood that such trust preferred or similar securities shall be permitted only under this clause (xv) and not under any other clause of the creation, issuance, incurrence or assumption this Section 6.01(a)). Notwithstanding any other provision of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateralthis Section 6.01(a), (xI) the Leverage Ratio is less Borrower shall not permit any Subsidiary to Guarantee all or any portion of the 2019 Notes, the 2019 Convertible Notes (other than 4.00 with respect to 1.00 any guarantees of the 2019 Convertible Notes that are in effect on the Effective Date) or the New Notes, (II) ETB Holdings shall not be permitted to incur any Indebtedness under this Section 6.01(a) after the Effective Date other than under Section 6.01(a)(iii) and (yIII) if such no Regulated Subsidiary shall incur any Indebtedness that is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA incurred for the most recent period purpose of four fiscal quarters for which financial statements have been delivered pursuant contributing to Section 5.01(a) or (b), as applicable, determined after giving effect meeting any capital requirements applicable to such Funded Indebtedness to be created, issued, incurred itself or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such dateany other Regulated Subsidiary.
(b) Holdings The Borrower will not, and will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, issue any preferred stock or other Equity Interests except (i) in the case of the Borrower, preferred Equity Interests that are Qualified Equity Interests, (including any Disqualified Stock), except that ii) Equity Interests permitted to be issued under Section 6.05(k),[reserved]; (iii) Holdings may issue preferred stock or other [reserved]; (iii) preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted issued by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted Subsidiary.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume a wholly owned Subsidiary or permit to exist any Indebtedness (regardless iv) in the case of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP a Regulated Subsidiary owed to the Borrower or a Subsidiary Loan Party of a Regulated Subsidiary, preferred Equity Interests, provided that is otherwise any issuance under this clause (b)(iv) shall reduce the amount of Indebtedness permitted to be incurred by this Agreement and is pledged as CollateralSubsidiaries under Section 6.01(a)(vi).
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and Holdings and the Borrower nor will not it permit any Restricted Subsidiary to, directly or indirectly create, incur, issue, guarantee or assume or permit to exist otherwise become directly or indirectly liable for any Indebtedness, contingently or otherwise, except:
(i) Term Loans, other than any Incremental Term Loans, and Letters of CreditIndebtedness created under the Loan Documents;
(ii) Indebtedness of Loan Parties evidenced by (A) the Existing Notes, (B) the Senior Secured Notes and (C) Permitted Refinancing Indebtedness in respect of such Existing Notes and Senior Secured Notes;
(iii) Indebtedness existing on the Restatement Effective Date and set forth in Schedule 6.01 and extensions, renewals, refinancings renewals and replacements of any such Indebtedness, provided that such extending, renewal or replacement Indebtedness that do (A) shall not increase the outstanding be in a principal amount thereof (other than by that exceeds the principal amount of any the Indebtedness being extended, renewed or replaced (plus accrued interest and premium thereon and reasonable fees or and expenses incurred in the refinancing thereofconnection therewith), (B) or result in shall not have an earlier maturity date or a decreased weighted average life thereofthan the Indebtedness being extended, renewed or replaced, (C) if applicable, shall be subordinated to the Obligations on the same terms (or, from a Lender’s perspective, better terms) as the Indebtedness being extended, renewed or replaced, and (D) there is no obligor of such Indebtedness that is not an obligor of such Indebtedness on the Effective Date;
(iiiiv) Indebtedness of the Borrower owed to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary owed to the Borrower, Holdings Borrower or any other another Restricted Subsidiary; provided that in the case of any such Indebtedness of a Restricted Subsidiary owed to the Borrower or a Subsidiary Loan Party, in each case subject such Indebtedness is evidenced by a Pledged Note to Section 6.04the extent required by the Collateral and Guarantee Requirement;
(ivv) Indebtedness of Loan Parties in respect of the Exchangeable PIK Notes (including any increase in such Indebtedness due to the accretion of the principal amount thereof pursuant to the terms thereof (so long as the rate of such accretion is not increased following the Effective Date)) and Permitted Refinancing Indebtedness in respect thereof;
(vi) Guarantees by the Borrower of Indebtedness of any Qualified Restricted Subsidiary and by any Qualified Restricted Subsidiary of Indebtedness of Holdings, the Borrower or any other Qualified Restricted Subsidiary, provided that such Guarantees are the Indebtedness so Guaranteed would have otherwise been permitted to be incurred by Borrower or the Guaranteeing Qualified Restricted Subsidiary under another clause of this Section 6.046.01;
(vvii) (A) Indebtedness of the Borrower or any Restricted Subsidiary that was assumed in connection with a Permitted Acquisition, which Indebtedness was in existence at the time of such Permitted Acquisition and not incurred in contemplation thereof and Permitted Refinancing Indebtedness in respect of workers’ compensation claimsthereof, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(viB) Indebtedness of the Borrower or any Restricted Subsidiary incurred to finance the design, acquisition, construction construction, lease installation or improvement of any property (real or personal), fixed or capital assets, including Capital Lease Obligations (provided that whether through their direct purchase or purchase of Equity Interest of a Person owing such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvementproperty) and extensions, renewals and replacements thereof, and (C) any Indebtedness assumed by the Borrower or any Restricted Subsidiary in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, thereof and extensions, renewals, refinancings and replacements of any such Permitted Refinancing Indebtedness that do not increase the outstanding principal amount in respect thereof; provided that the aggregate principal amount of Indebtedness permitted by this clause (viSection 6.01(a)(vii) shall not exceed $25,000,000 50.0 million at any one time outstanding;
(viiviii) Indebtedness of the China JV in an aggregate principal amount not owed to exceed $20,000,000 at any time outstanding; provided that such Indebtedness is Person (A) secured only by assets of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
(viii) unsecured reimbursement including obligations (contingent or otherwise) in respect of letters of credit issued for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance pursuant to support 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 (i) performance bonds, bid bonds, surety bonds, performance and completion guarantees and similar obligations, in each case provided in the ordinary course of business, and (ii) appeal bonds;
(x) Indebtedness of any Loan Party pursuant to Swap Agreements permitted by Section 6.07;
(xi) [Reserved];
(xii) Indebtedness representing deferred compensation to employees of the Borrower and the Restricted Subsidiaries incurred in the ordinary course of business;
(xiii) Indebtedness in respect of promissory notes issued to physicians, consultants, employees or directors or former employees, consultants or directors in connection with repurchases of Equity Interests permitted by Section 6.08(iii)
(xiv) Guarantees by any Loan Party of Indebtedness of a Non-Consolidated Entity in compliance with Section 6.04(xv);
(xv) Indebtedness of the Borrower or any Restricted Subsidiary; provided that (A) the aggregate principal amount of all such letters of credit and unreimbursed disbursements in respect thereof Indebtedness permitted by this Section 6.01(a)(xv) shall not at any time exceed $5,000,000 and (B) any disbursement in respect of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement is made; and20.0 million;
(ixxvi) other Funded Indebtedness if, on the date of the creation, issuance, Borrower or any Restricted Subsidiary; provided that after giving effect to the incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Borrower’s Fixed Charge Coverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for shall be at least 2.0:1.0 as of the last day of the most recent period in respect of four fiscal quarters for which financial statements shall have been required to be delivered pursuant to Section 5.01(a) or (b)) (or if prior to the first time such financial statements are so required to be delivered, as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with of the proceeds last day of such Funded Indebtedness on or within 10 days after such date.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) most recent period in respect of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness which financial statements of the Borrower and the its Restricted Subsidiaries are available) and Permitted Refinancing Indebtedness in respect thereof; provided that the maximum amount of Indebtedness that may be incurred by (or be an obligation of) a Restricted Subsidiary that is not a Subsidiary Loan Party under this Section 6.01(a)(xvi) shall be $10.0 million outstanding at any time and such Indebtedness of such a Restricted Subsidiary that is not a Subsidiary Loan Party may be secured to the extent permitted hereby.by Section 6.02(xvii); and
(cxvii) Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock), except that (i) Holdings may issue preferred stock or other preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted Subsidiary.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Subordinated Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party in an aggregate outstanding principal amount not to exceed (x) $50.0 million outstanding at any time if after giving effect the incurrence of such Indebtedness, the Borrower’s Senior Secured Leverage Ratio is greater than 4.50 to 1.0 as of the last day of the most recent period in respect of which financial statements shall have been required to be delivered pursuant to Section 5.01(a) or (b) (or if prior to the first time such financial statements are so required to be delivered, as of the last day of the most recent period in respect of which financial statements of the Borrower and its Restricted Subsidiaries are available) and (y) $100.0 million outstanding at any time if after giving effect the incurrence of such Indebtedness, the Borrower’s Senior Secured Leverage Ratio is less than or equal to 4.50 to 1.0 as of the last day of the most recent period in respect of which financial statements shall have been required to be delivered pursuant to Section 5.01(a) or (b) (or if prior to the first time such financial statements are so required to be delivered, as of the last day of the most recent period in respect of which financial statements of the Borrower and its Restricted Subsidiaries are available).
(b) All Indebtedness incurred pursuant to this Section 6.01 of any Loan Party owed to any Subsidiary or Non-Consolidated Entity that is otherwise not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent; provided that, notwithstanding the foregoing, such Indebtedness shall only be subordinated to the extent permitted by applicable laws or regulations.
(c) For purposes of determining compliance with this Agreement and is pledged as CollateralSection 6.01, in the event that an item of proposed Indebtedness meets the criteria of more than one of the exceptions permitted above, the Borrower will be permitted to classify such item of Indebtedness on the date of its incurrence, or later reclassify all or a portion of such item of Indebtedness, in any manner that complies with this covenant.
Appears in 1 contract
Samples: Credit Agreement (Symbion Inc/Tn)
Indebtedness; Certain Equity Securities. (a) The Borrower Loan Agreement Parties will not, and Holdings and the Borrower will not permit any Restricted Subsidiary of their Subsidiaries to, directly or indirectly, create, incur, assume or permit to exist (including by way of Guarantee) any Indebtedness, except:
(i) Term Loans, other than any Incremental Term Loans, Indebtedness incurred and Letters of Creditoutstanding under the Loan Documents;
(ii) (A) Indebtedness existing of the Loan Parties incurred and outstanding under the Subordinated Notes Documents in an aggregate principal amount not to exceed $125,000,000 and (B) any refinancings thereof with Permitted Subordinated Indebtedness; provided that in the case of this clause (B) only, (x) no Default shall have occurred or be continuing at the time of the respective refinancing or would exist immediately after giving effect thereto, (y) after giving effect to the incurrence of such Indebtedness (and any other Indebtedness incurred since the last day of the immediately preceding Test Period) on a pro forma basis as if it were incurred on the Restatement Effective Date first day of the immediately preceding Test Period, the Canadian Parent would be in compliance with Sections 6.13 through 6.15, inclusive, and set forth in Schedule 6.01 and extensions, renewals, refinancings and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than by z) the amount of such Indebtedness is not increased at the time of such refinancing, except by an amount equal to any reasonable prepayment premium on such Indebtedness being refinanced and fees or and expenses reasonably incurred in the refinancing thereof) or result in an earlier maturity date or decreased weighted average life thereofconnection with such refinancing;
(iii) Indebtedness existing on the Effective Date (other than Indebtedness under the Existing Senior Notes Documents) and set forth in Schedule 6.01(a)(iii) (the “Existing Indebtedness”) and any renewals, refinancings and extensions thereof on terms and conditions (other than interest rates and other terms which fluctuate with general market conditions) no less favorable to such Person than such existing Indebtedness; provided that the amount of such Indebtedness is not increased at the Borrower time of such refinancing, refunding, renewal or extension except by an amount equal to Holdings or any Restricted Subsidiary reasonable prepayment premium on such Indebtedness being refinanced and of fees and expenses reasonably incurred in connection with such refinancing and by an amount equal to any Restricted Subsidiary to existing commitment (which shall not be increased from the Borrower, Holdings or any other Restricted Subsidiary, amounts thereof as in each case subject to Section 6.04effect on the Effective Date and shown in Schedule 6.01(a)(iii)) unutilized thereunder and such refinanced Indebtedness matures no earlier than the Indebtedness being refinanced;
(iv) Guarantees (x) intercompany Indebtedness among the Loan Parties, (y) intercompany Indebtedness of any Loan Party owed to any Non-Guarantor Subsidiary and (z) Indebtedness of any Non-Guarantor Subsidiary owing to any Loan Party; provided that (I) any such Indebtedness (other than any such Indebtedness owed by a Loan Party to a Non-Guarantor Subsidiary) shall be evidenced by a promissory note and shall be pledged pursuant to the relevant Security Document, (II) such Indebtedness shall at all times be subordinated as, and to the extent, required by the Borrower Intercompany Subordination Agreement, (III) the obligor and by obligee with respect to any Restricted Subsidiary such Indebtedness shall be parties to the Intercompany Subordination Agreement (or become parties thereto contemporaneously with the incurrence of such Indebtedness) and (IV) at no time shall the aggregate outstanding principal amount of all intercompany Indebtedness made pursuant to subclause (z) of Holdingsthis clause (iv) (determined without regard to any write-downs or write-offs thereof), when added to the Borrower or any other Subsidiaryaggregate amount of all cash common equity contributions made pursuant to subclause (z) of Section 6.04(iii), provided that such Guarantees are permitted by Section 6.04exceed $15,000,000;
(v) Guarantees by any Loan Party of Indebtedness of any other Loan Party (other than Indebtedness permitted pursuant to clause (vii) of this Section 6.01(a)), in each case, to the Borrower or any Restricted Subsidiary in respect of workers’ compensation claimsextent such Indebtedness was permitted to be incurred hereunder, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by if such Indebtedness is subordinated to the Borrower and Obligations under the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claimsLoan Documents, such obligations are reimbursed within 30 days following such drawing or incurrenceGuarantee is as subordinated in right of payment to the Obligations at least to the same extent;
(vi) Indebtedness of the Borrower Canadian Parent or any Restricted Subsidiary of its Subsidiaries incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof or result in an earlier maturity date or decrease the weighted average life thereof; provided that (A) such Indebtedness is incurred prior to or within 90 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 exceed $25,000,000 at any time outstanding;
(vii) Indebtedness of a Person existing at the China JV time such Person becomes a Subsidiary of the Canadian Parent in connection with a Permitted Acquisition, but only if such Indebtedness was not created or incurred in contemplation of such Person becoming a Subsidiary of the Canadian Parent; provided that (x) no Default shall have occurred or be continuing or would result therefrom and (y) the aggregate principal amount of all such Indebtedness shall not exceed $25,000,000 at any time outstanding;
(viii) Hedging Agreements entered into by IRS (US), the Canadian Parent or any of their respective Subsidiaries in the ordinary course of business and not for speculative purposes;
(ix) Indebtedness owed to (including obligations in respect of letters of credit for the benefit of) any Person providing worker’s compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Canadian Parent or any Subsidiary, pursuant to reimbursement or indemnification obligations to such Person;
(x) Indebtedness of the Canadian Parent or any of its Subsidiaries in respect of performance bonds, bid bonds, appeal bonds, surety bonds and similar obligations and trade-related letters of credit, in each case provided in the ordinary course of business (including those incurred to secure health, safety and environmental obligations in the ordinary course of business), so long as the aggregate amount of all such Indebtedness does not exceed $10,000,000 at any time outstanding;
(xi) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided that such Indebtedness is extinguished within two Business Days of its incurrence;
(xii) Indebtedness arising from agreements of the Canadian Parent or any Subsidiary of the Canadian Parent providing for indemnification, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the disposition of any business, assets or a Subsidiary, other than Guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition;
(xiii) Permitted Subordinated Indebtedness in an aggregate principal amount outstanding not to exceed $150,000,000; provided that (x) no Default shall have occurred or be continuing at the time of the respective issuance or would exist immediately after giving effect thereto and (y) after giving effect to the incurrence of such Indebtedness (and any other Indebtedness incurred since the last day of the immediately preceding Test Period) on a pro forma basis as if it was incurred on the first day of the immediately preceding Test Period, the Canadian Parent would be in compliance with Sections 6.13 through 6.15, inclusive;
(xiv) other unsecured Indebtedness of the Canadian Parent or any of its Subsidiaries in an aggregate principal amount not exceeding $25,000,000 at any time outstanding; provided that no Default shall have occurred or be continuing or would result therefrom; and
(xv) on or prior to August 28, 2004, Indebtedness of the Canadian Borrower and its Subsidiaries under the Existing Senior Notes Documents in an aggregate principal amount not to exceed $20,000,000 at any time outstanding; provided that such Indebtedness is (A) secured only by assets of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
(viii) unsecured reimbursement obligations (contingent or otherwise) in respect of letters of credit issued to support obligations of the Borrower or any Restricted Subsidiary incurred in the ordinary course of business; provided that (A) the aggregate amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not at any time exceed $5,000,000 and (B) any disbursement in respect of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement is made; and
(ix) other Funded Indebtedness if, on the date of the creation, issuance, incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such date247,100,000.
(b) Holdings The Loan Agreement Parties will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower willnot, nor will they permit any Restricted Subsidiary of their respective Subsidiaries to, directly or indirectly, issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock)Preferred Equity, except that (i) Holdings the Canadian Parent may issue preferred stock or other preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted SubsidiaryQualified Preferred Stock.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.
Appears in 1 contract
Samples: Credit Agreement (Intertape Woven Products Services S.A. De C.V.)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any IndebtednessIndebtedness or Attributable Debt, except:
(i) Term Loans, other than any Incremental Term Loans, and Letters of CreditIndebtedness created under the Loan Documents;
(ii) Indebtedness under the Related Credit Facility in an aggregate amount not in excess of $250,000,000 at any time outstanding;
(iii) the Senior Notes in an aggregate amount not in excess of $300,000,000 at any time outstanding;
(iv) the Capital Securities in an aggregate amount not in excess of $200,000,000 at any time outstanding;
(v) Indebtedness existing on the Restatement Effective Date date hereof and set forth in Schedule 6.01 and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than by the amount of any fees or expenses incurred in the refinancing thereof) or result in an earlier maturity date or decreased weighted average life thereof;
(iiivi) Indebtedness of the Borrower to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings Borrower or any other Restricted Subsidiary, in each case ; provided that Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary Loan Party shall be subject to Section 6.04;
(ivvii) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Restricted Subsidiary of Indebtedness of Holdings, any other Subsidiary; provided that Guarantees by the Borrower or any other Subsidiary, provided Subsidiary Loan Party of Indebtedness of any Subsidiary that such Guarantees are permitted by is not a Loan Party shall be subject to Section 6.04;
(v) Indebtedness of the Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(viviii) 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 (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof or result in an earlier maturity date or decreased weighted average life thereof; provided that such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement;
(i) Indebtedness and (ii) Attributable Debt in respect of Sale-Leaseback Transactions, not in excess of $75,000,000 in the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $25,000,000 at any time outstanding;
(viii) Indebtedness of Restricted Subsidiaries that are Securitization Vehicles in respect of Third Party Securities in an aggregate amount not in excess of $200,000,000 at any time outstanding minus the then outstanding principal amount of Indebtedness under the CoBank Receivables Loan Agreement and (ii) Indebtedness of the China JV Borrower and Restricted Subsidiaries consisting solely of Liens on their Sellers' Retained Interests in connection with Securitizations permitted by Section 6.04 securing obligations in respect of Third Party Securities in an aggregate principal amount not to exceed in excess of $20,000,000 200,000,000 at any time outstandingoutstanding minus the then outstanding principal amount of Indebtedness under the CoBank Receivables Loan Agreement; and
(xi) Indebtedness of LOL Finance and its Wholly Owned Subsidiaries incurred in the ordinary course of business to finance their assets; provided that such Indebtedness (x) is (A) secured only by assets of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
Subsidiaries, except to the extent permitted pursuant to clause (viiivii) unsecured reimbursement obligations (contingent or otherwise) in respect of letters of credit issued to support obligations of the Borrower or any Restricted Subsidiary incurred in the ordinary course of business; provided that (A) the aggregate amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not at any time exceed $5,000,000 and (B) any disbursement in respect of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement is made; and
(ix) other Funded Indebtedness if, on the date of the creation, issuance, incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 above and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such datedoes not exceed $100,000,000 at any time outstanding.
(b) Holdings The Borrower will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, to issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock), except that (i) Holdings may issue preferred stock or other preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted SubsidiaryInterests.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.
Appears in 1 contract
Samples: Credit Agreement (Land O Lakes Inc)
Indebtedness; Certain Equity Securities. (a) The Borrower Company will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any IndebtednessIndebtedness or any preferred stock or other preferred Equity Interests, except:
(ia) Term Loans, other than any Incremental Term Loans, and Letters of CreditIndebtedness created under the Loan Documents;
(iib) Indebtedness existing on the Restatement Effective Date Company’s Convertible Notes, and set forth other Subordinated Debt in Schedule 6.01 an aggregate amount that, taken together with the outstanding principal amount of the Convertible Notes (and any extensions, renewals and replacements referred to below), does not exceed $75,000,000 at any time and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that are subordinated on substantially the same terms and do not increase the outstanding principal amount thereof (other than by the amount of any fees or expenses incurred in the refinancing thereof) or result in an earlier maturity date or decreased weighted average life thereof; provided that (x) any such refinancing Indebtedness shall be unsecured and (y) only the obligors in respect of such Subordinated Debt (or any extension, renewal or replacement of the Indebtedness in respect thereof permitted hereunder) may become obligated with respect to any such refinancing Indebtedness;
(iiic) Indebtedness existing on the date hereof and set forth in Schedule 6.01 and any extension, renewal, refinancing or replacement of any such Indebtedness that does not increase the outstanding principal amount thereof or change the parties directly or indirectly responsible for the payment of such Indebtedness; provided that (A) any such refinancing or replacement Indebtedness shall not have a shorter maturity than the Indebtedness refinanced or replaced or a requirement not applicable to the Indebtedness refinanced or replaced that such Indebtedness be prepaid, redeemed, repurchased or defeased on one or more scheduled dates or upon the happening of one or more events (other than events of default or change of control events) before the maturity of the Indebtedness refinanced or replaced, (B) no such refinancing or replacement Indebtedness shall be secured by any collateral not securing the Indebtedness refinanced or replaced and (C) any such refinancing or replacement of Indebtedness under any revolving credit or similar facility shall be accompanied by the termination of the portion of the commitments under such facility under which such refinanced or replaced Indebtedness shall have been outstanding;
(d) Indebtedness of the Borrower Company to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings Company or any other Restricted Subsidiary, in each case ; provided that Indebtedness of any Subsidiary that is not a Subsidiary Loan Party to the Company or any Subsidiary Loan Party shall be subject to Section 6.04;
(ive) Guarantees by the Borrower Company of Indebtedness of any Subsidiary and by any Restricted Subsidiary of Indebtedness of Holdings, the Borrower Company or any other Subsidiary, ; provided that such Guarantees are permitted by the Company or any Subsidiary Loan Party of Indebtedness of any Subsidiary that is not a Subsidiary Loan Party shall be subject to Section 6.04;
(vf) Indebtedness of the Borrower Company or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vi) 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 (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion Obligations, Synthetic Lease Obligations, Attributable Debt in respect of such construction or improvement) Sale-Leaseback Transactions and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof or result in an earlier maturity date or decreased weighted average life thereof; provided that (A) such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement and (B) the aggregate principal amount of Indebtedness permitted by this clause (vif) shall not exceed $25,000,000 at any time outstanding;
(viig) Indebtedness of any Person that becomes a Subsidiary after the China JV in an aggregate principal amount not to exceed $20,000,000 at any time outstanding; provided that such Indebtedness is (A) secured only by assets of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
(viii) unsecured reimbursement obligations (contingent or otherwise) in respect of letters of credit issued to support obligations of the Borrower or any Restricted Subsidiary incurred in the ordinary course of businessdate hereof; provided that (A) such Indebtedness exists at the aggregate amount time such Person becomes a Subsidiary and is not created in contemplation of all or in connection with such letters of credit and unreimbursed disbursements in respect thereof shall not at any time exceed $5,000,000 Person becoming a Subsidiary and (B) the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $25,000,000 at any disbursement in respect time outstanding;
(h) preferred stock or preferred Equity Interests of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement is madethe Company; and
(ixi) other Funded Indebtedness if, on the date of the creation, issuance, incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (xA) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such date.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of unsecured Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
Company or any Subsidiary or (cB) Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock), except that (i) Holdings may issue preferred stock or other preferred Equity Interests of Holdings any Subsidiary, in an aggregate principal amount under clause (A) and (B) not exceeding $50,000,000 at any time outstanding, of which no more than $35,000,000 may be created, incurred, assumed or permitted to exist by Subsidiaries that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted Subsidiary.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as CollateralParties.
Appears in 1 contract
Samples: Credit Agreement (Bowne & Co Inc)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, exceptprovided that so long as no Event of Default has occurred and is continuing the Borrower or any Subsidiary Loan Party may incur Qualified Debt, if on a Pro Forma Basis (x) the Leverage Ratio for the Borrower’s most recently ended four full fiscal quarters for which financial statements have been delivered pursuant to paragraph (a) or (b) of Section 5.01 would be less than the Applicable Leverage Ratio and (y) the Borrower would be in compliance on a Pro Forma Basis with the covenant set forth in Section 6.12 as of the most recent test date for which financial statements have been delivered pursuant to paragraph (a) or (b) of Section 5.01.
(b) The limitations set forth in paragraph (a) of this Section 6.01 shall not apply to any of the following items:
(i) Term Loans, other than any Incremental Term Loans, and Letters of CreditIndebtedness created under the Loan Documents;
(ii) Indebtedness existing on (A) the Restatement Effective Date Convertible Notes, (B) the New Convertible Notes and set forth in Schedule 6.01 and (C) refinancings, extensions, renewals, refinancings renewals and replacements of any such Indebtedness or Indebtedness incurred pursuant to subclauses (A) and (B), provided that do such refinancing, extending, renewal or replacement Indebtedness (I) shall not increase be Indebtedness of a Subsidiary obligor that is not a Loan Party unless such Subsidiary was an obligor with respect to the outstanding Indebtedness being refinanced, extended, renewed or replaced, (II) shall not be in a principal amount thereof that exceeds the principal amount of the Indebtedness being refinanced, extended, renewed or replaced (other than plus any accrued but unpaid interest and premium or penalty payable by the amount terms of any such Indebtedness thereon and reasonable fees or and expenses incurred in the refinancing thereofassociated therewith), (III) or result in shall not have an earlier maturity date or decreased shorter weighted average life thereofthan the Indebtedness being refinanced, extended, renewed or replaced and (IV) if the Indebtedness being refinanced, extended, renewed or replaced is subordinated to the Obligations, such Indebtedness shall be subordinated to the Obligations on the same terms as the Indebtedness being refinanced, extended, renewed or replaced;
(iii) Indebtedness existing on the date hereof and set forth on Schedule 6.01 and refinancings, extensions, renewals and replacements of any such Indebtedness or Indebtedness incurred pursuant to Section 6.01(a), provided that such refinancing, extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of a Subsidiary obligor that is not a Loan Party unless such Subsidiary was an obligor with respect to the Indebtedness being refinanced, extended, renewed or replaced, (B) shall not be in a principal amount that exceeds the principal amount of the Borrower to Holdings Indebtedness being refinanced, extended, renewed or replaced (plus any Restricted Subsidiary accrued but unpaid interest and premium or penalty payable by the terms of any Restricted Subsidiary such Indebtedness thereon and reasonable fees and expenses associated therewith), (C) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being refinanced, extended, renewed or replaced and (D) if the Indebtedness being refinanced, extended, renewed or replaced is subordinated to the BorrowerObligations, Holdings such Indebtedness shall be subordinated to the Obligations on the same terms as the Indebtedness being refinanced, extended, renewed or any other Restricted Subsidiary, in each case subject to Section 6.04replaced;
(iv) Guarantees by Indebtedness of the Borrower to any Subsidiary and by of any Restricted Subsidiary of Indebtedness of Holdings, to the Borrower or any other Subsidiary, provided that such Guarantees are permitted by (A) Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary Loan Party shall be subject to Section 6.04;
6.04 and (vB) Indebtedness of the Borrower or any Restricted Subsidiary Loan Party to any Subsidiary that is not a Subsidiary Loan Party shall be subordinated to the Obligations on terms set forth in Exhibit F;
(v) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary (other than any Excluded Subsidiary) of Indebtedness of the Borrower or any other Subsidiary, provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (b)(iii) (except as it relates to refinancing of Indebtedness incurred pursuant to Section 6.01(a) or (b)(vii)), (B) Guarantees by the Borrower or any Subsidiary Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 6.04, (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations, (D) no Indebtedness incurred pursuant to Section 6.01(a) (or refinancing Indebtedness incurred pursuant to Section 6.01(b)(iii) in respect of workers’ compensation claimsIndebtedness incurred pursuant to Section 6.01(a)) or Indebtedness outstanding in reliance on Section 6.01(b)(ii) shall be Guaranteed by any Subsidiary, self-insurance obligations, performance bonds, surety, appeal or similar bonds unless such Subsidiary is a Loan Party that has Guaranteed the Obligations pursuant to the Collateral Agreement and completion or other financial guarantees provided (E) any Guarantee by the Borrower of the Convertible Notes (the “Parent Convertible Note Guarantee”) shall be subordinated to the Obligations to at least the same extent and on the Restricted Subsidiaries in same terms as the ordinary course Parent Convertible Note Guarantee is subordinated to the Obligations on and as of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrenceClosing Date;
(vi) (A) Indebtedness of the Borrower or any Restricted Subsidiary (other than any Excluded Subsidiary) incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) 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, provided that such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, and (B) extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase so long as the outstanding principal amount thereof; of such refinancings, extensions, renewals and replacements does not exceed the principal amount of the Indebtedness being refinanced, extended, renewed or replaced (plus any accrued but unpaid interest and premium or penalty payable by the terms of such Indebtedness thereon and reasonable fees and expenses associated therewith), provided that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $25,000,000 30,000,000 at any time outstanding;
(vii) Indebtedness of any Person that is merged or consolidated with and into the China JV in an aggregate principal amount not to exceed $20,000,000 at Borrower or any time outstanding; Subsidiary or of any Person that otherwise becomes a Subsidiary after the date hereof, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and is (A) secured only by assets not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal amount of the China JV Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and not redemption premium payable by assets the terms of Holdingssuch Indebtedness thereon), the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
(viii) unsecured reimbursement obligations (contingent or otherwise) in respect of letters of credit issued to support obligations of the Borrower or any Restricted Subsidiary incurred in the ordinary course of business; provided that (Ai) the aggregate amount Borrower would be in compliance on a Pro Forma Basis with the covenants set forth in Section 6.12 and Section 6.13 as of all such letters of credit and unreimbursed disbursements in respect thereof shall not at any time exceed $5,000,000 and (B) any disbursement in respect of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement is made; and
(ix) other Funded Indebtedness if, on the date of the creation, issuance, incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters test date for which financial statements have been delivered pursuant to Section 5.01(aparagraph (a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) of Section 5.01 and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such date.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) the aggregate principal amount of Indebtedness permitted under by this clause (a)(iiivii) shall not exceed $100,000,000 at any time outstanding (of this Section 6.01 and which no more than $50,000,000 shall be Indebtedness of Subsidiaries that are not Loan Parties);
(iiiviii) Guarantees permitted by Holdings of other unsecured Indebtedness of the Borrower and the Restricted Subsidiaries in an aggregate principal amount not exceeding $20,000,000 at any time outstanding;
(ix) 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;
(x) Indebtedness of the Borrower or any Subsidiary in respect of performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees and similar obligations (other than in respect of other Indebtedness), in each case provided in the ordinary course of business;
(xi) Indebtedness in respect of Swap Agreements permitted herebyby Section 6.07;
(xii) Indebtedness arising from the honoring by a bank or financial institution of a check or similar instrument drawn against insufficient funds in the ordinary course of business, so long as such Indebtedness is repaid within five Business Days;
(xiii) Indebtedness of TRF owing to Borrower or another Subsidiary not to exceed $10,000,000 at any time outstanding;
(xiv) Indebtedness in the form of a letter of credit or guaranty in an aggregate amount required in order to consummate the Squeeze-Out Procedure and obtain advanced access (Sw: förhandstillträde); provided that the Borrower shall use Tranche A Term Loans to promptly repay any draws on such letter of credit or guaranty (or to “cash collateralize” its obligations on any such letter of credit or guaranty prior to any draw);
(xv) Indebtedness in respect of letters of credit, guarantees, counter-indemnities and short term facilities incurred by any Subsidiary engaged in Exchange and Clearing Operations in connection with the ordinary clearing, depository and settlement procedures (including, without limitation, any letter of credit or guarantees provided to any central securities depositories or external custodians) relating thereto; provided that any advances thereunder are repaid within 10 days following the date of such advance or any drawing under any letter of credit or guarantee;
(xvi) any Indebtedness arising under arrangements in connection with the participation in or through any clearing system or investment, commodities or stock exchange where the Indebtedness arises under the rules, normal procedures, agreements or legislation governing trading on or through such system or exchange; provided that any advances thereunder are repaid within 10 days following the date of such advance or any drawing under any letter of credit or guarantee;
(xvii) any Indebtedness arising as a result of short-term sale and repurchase transactions entered into by the Borrower or any of its Subsidiaries on market terms and in respect of marketable securities held for investment purposes where such member of the OMX Group enters into back to back, foreign exchange, swap or derivative transaction in the ordinary course of business, provided that the amount of such Indebtedness doesn’t exceed the principal amount of the securities sold;
(xviii) Indebtedness incurred in connection with the administration of the UK ESOP Program in the ordinary course of business and not outstanding longer than seven days;
(xix) Indebtedness of any Regulated Subsidiary incurred under a revolving credit facility or working capital or similar facility entered into at such Regulated Subsidiary’s sole and absolute discretion to satisfy such Regulated Subsidiary’s determination of any requirement imposed at any time or from time to time by any Governmental Authority;
(xx) Indebtedness of any Regulated Subsidiary to the Borrower or any other Subsidiary entered into at such Regulated Subsidiary’s sole and absolute discretion to satisfy such Regulated Subsidiary’s determination of any requirement imposed at any time or from time to time by any Governmental Authority;
(xxi) Guarantees by the Borrower or any other Subsidiary of any Indebtedness of any Regulated Subsidiary entered into at such Regulated Subsidiary’s sole and absolute discretion to satisfy such Regulated Subsidiary’s determination of any requirement imposed at any time or from time to time by any Governmental Authority;
(xxii) Indebtedness consisting of the financing of insurance premiums in the ordinary course of business;
(xxiii) Indebtedness of the OMX Group incurred on behalf of its customers in its market technology business consisting of purchase money Indebtedness and Capital Lease Obligations not to exceed $50,000,000 outstanding at any time in respect of back-to-back lease arrangements; and
(xxiv) Indebtedness in respect of the Nord Pool Seller Note.
(c) Neither Holdings nor the The Borrower willwill not, nor will they it permit any Restricted Subsidiary to, issue any preferred stock Equity Interests or other any Disqualified Equity Interests, except (i) in the case of the Borrower, preferred Equity Interests (including any Disqualified Stock), except that (i) Holdings may issue preferred stock or other preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings Qualified Equity Interests, and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted Subsidiary.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed such Equity Interests issued to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as CollateralParty.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Holdings and the Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any IndebtednessIndebtedness or any Attributable Debt, except:
(i) Term Loans, other than Indebtedness created under the Loan Documents and any Incremental Term Loans, and Letters Permitted Subordinated Indebtedness of Creditthe Borrower or its Subsidiaries to the extent the Net Proceeds thereof are used to refinance Indebtedness created under the Loan Documents;
(ii) Indebtedness existing on the Restatement Effective Closing Date and set forth in Schedule 6.01 and extensions, renewals, refinancings and replacements of any such Refinancing Indebtedness that do not increase the outstanding principal amount thereof (other than by the amount of any fees or expenses incurred in the refinancing thereof) or result in an earlier maturity date or decreased weighted average life respect thereof;
(iii) Indebtedness of the Borrower to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings Borrower or any other Restricted Subsidiary; provided, in each case subject that no Subsidiary that is not a Loan Party shall have any Indebtedness to Section 6.04the Borrower or any Subsidiary Loan Party;
(iv) Guarantees by the Borrower of Indebtedness of any Subsidiary Loan Party and by any Restricted Subsidiary of Indebtedness of Holdings, the Borrower or any other Subsidiary, provided that such Guarantees are permitted by Section 6.04Subsidiary Loan Party;
(v) Indebtedness and Attributable Debt of the Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vi) 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 (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than by an amount not greater than fees and expenses, including premium and defeasance costs, associated therewith) or result in a decreased average weighted life thereof; provided that (1) such Indebtedness or Attributable Debt is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement and (2) the aggregate principal amount of Indebtedness and Attributable Debt permitted by this clause (v), together with the aggregate principal amount of Indebtedness and Attributable Debt of the Service Company described in Section 6.20(d)(i) allocated to the Borrower and its Subsidiaries pursuant to the Shared Services Agreement, shall not exceed $20,000,000 at any time outstanding;
(vi) Indebtedness of any Person that becomes a Subsidiary after the Closing Date and Refinancing Indebtedness in respect thereof; provided that (A) such Indebtedness (other than Refinancing Indebtedness) exists at the time such Person becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary (except to the extent such Indebtedness refinanced other Indebtedness to facilitate such entity becoming a Subsidiary) and (B) the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $25,000,000 10,000,000 at any time outstanding;
(vii) Indebtedness of the China JV Borrower or any Subsidiary in respect of letters of credit in an aggregate principal face amount not to exceed exceeding $20,000,000 5,000,000 at any time outstanding; provided that such Indebtedness is (A) secured only by assets of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
(viii) unsecured reimbursement obligations (contingent or otherwise) in respect of letters of credit issued Indebtedness and Attributable Debt owing to support obligations of the Borrower or any Restricted Subsidiary Service Company incurred in pursuant to the ordinary course of business; provided that (A) the aggregate amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not at any time exceed $5,000,000 and (B) any disbursement in respect of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement is madeShared Services Transactions; and
(ix) other Funded unsecured Indebtedness if, on the date of the creation, issuance, incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such datean aggregate principal amount not exceeding $20,000,000 at any time outstanding.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock), except that (i) Holdings may issue preferred stock or other preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted SubsidiaryInterests.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.
Appears in 1 contract
Samples: Credit Agreement (DEX ONE Corp)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term Loans, other than any Incremental Term Loans, and Letters of CreditIndebtedness created under the Loan Documents;
(ii) the Senior Unsecured Notes and the Guarantees thereof;
(iii) Indebtedness existing on the Restatement Effective Date date hereof and set forth in Schedule 6.01 and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than by the amount of any fees or expenses incurred in the refinancing thereof) or result in an earlier final maturity date or decreased weighted average life thereof;
(iiiiv) Indebtedness of the Borrower to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings or any other Restricted Subsidiary, in each case subject to Section 6.04;
(iv) Guarantees by the Borrower and by any Restricted Subsidiary of Indebtedness of Holdings, the Borrower or any other Subsidiary, provided that such Guarantees are permitted by Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary Loan Party shall be subject to Section 6.04;
(v) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any Restricted Subsidiary in respect of workers’ compensation claimsother Subsidiary, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided that Guarantees by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence or any Subsidiary Loan Party of Indebtedness with respect of any Subsidiary that is not a Loan Party shall be subject to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrenceSection 6.04;
(vi) 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 (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof or result in an earlier final maturity date or decreased weighted average life thereof; , provided that (A) such Indebtedness is incurred prior to or within 12 months 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 exceed $25,000,000 5,000,000 at any time outstanding;
(vii) Indebtedness of any Person that becomes a Subsidiary after the China JV date hereof and extensions, renewals and replacements thereof that do not increase the outstanding principal amount thereof, provided that (A) such Indebtedness exists at the time such Person becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary and (B) the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $5,000,000 at any time outstanding;
(viii) unsecured Indebtedness not otherwise permitted hereunder in an aggregate principal amount not to exceed exceeding $20,000,000 5,000,000 at any time outstanding; provided that such ;
(ix) Indebtedness is under Hedging Agreements entered into in accordance with Section 6.07;
(Ax) secured only by assets of the China JV Indebtedness with respect to surety, appeal and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed performance bonds obtained by Holdings, the Borrower or any other Restricted Subsidiaryof its Subsidiaries in the ordinary course of business;
(viiixi) unsecured reimbursement obligations Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (contingent or otherwiseexcept in the case of daylight overdrafts) in respect of letters of credit issued to support obligations of the Borrower or any Restricted Subsidiary incurred drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within two Business Days of its incurrence;
(xii) unsecured subordinated Indebtedness of the Borrower or any Subsidiary assumed or incurred in connection with any Permitted Acquisition, provided that (A) the subordination provisions of such Indebtedness are reasonably satisfactory in all respects to the Agents, (B) the terms of such Indebtedness shall not provide for any maturity, amortization, sinking fund payment, mandatory redemption or other required repayment or repurchase of such Indebtedness (other than any required offer to repay or repurchase (x) with asset sale proceeds pursuant to customary arrangements providing that the Borrower or such Subsidiary, as the case may be, may (in lieu of making such offer) repay Indebtedness under this Agreement or (y) pursuant to "change of control" provisions that are no more restrictive than the analogous provisions contained in this Agreement), in each case prior to the Maturity Date (C) the covenants and events of default relating to such Indebtedness shall be no more restrictive than those contained in this Agreement and (D) the aggregate principal amount of all such letters of credit and unreimbursed disbursements in respect thereof Indebtedness shall not exceed $10,000,000 in the aggregate at any time exceed $5,000,000 outstanding;
(xiii) Capital Lease Obligations entered into in connection with Permitted Existing Academy Sale Leasebacks; and
(xiv) Indebtedness arising from agreements of the Borrower or any Subsidiary providing for indemnification, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the disposition of any business, assets or any Subsidiary, other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or Subsidiary for the purpose of financing such acquisition; provided, however, that (A) such Indebtedness is not reflected on the balance sheet of the Borrower or any Subsidiary (provided that contingent obligations referred to in a footnote to financial statements and not otherwise reflected on the balance sheet will be deemed not to be reflected on such balance sheet for purposes of this clause (A)) and (B) any disbursement the maximum assumable liability in respect of any all such letter of credit Indebtedness shall be reimbursed in full within three Business Days after such disbursement is made; and
at no time exceed the gross proceeds, including noncash proceeds (ix) other Funded Indebtedness if, on the date of the creation, issuance, incurrence or assumption fair market value of such Indebtedness (or, in noncash proceeds being measured at the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness time it is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 received and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after without giving effect to any subsequent changes in value), actually received by the Borrower and its Subsidiaries in connection with such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such datedisposition.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, issue any preferred stock (other than the Preferred Stock) or be or become liable in respect of any obligation (contingent or otherwise) to purchase, redeem, retire, acquire or make any other preferred Equity Interests (including payment in respect of any Disqualified Stock), except that (i) Holdings may issue preferred shares of capital stock or other preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted Subsidiaryoption, warrant or other right to acquire any such shares of capital stock.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.
Appears in 1 contract
Samples: Credit Agreement (Lpa Services Inc)
Indebtedness; Certain Equity Securities. (a) The Neither the Company nor any Borrower will, nor will not, and Holdings and the Borrower will not they permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:except (without duplication):
(i) Term Loans, other than any Incremental Term Loans, and Letters of CreditIndebtedness created under the Loan Documents;
(ii) Indebtedness existing on the Restatement Effective Date date hereof and set forth in Schedule 6.01 and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not (A) increase the outstanding principal amount thereof or (other than by the amount of any fees or expenses incurred in the refinancing thereofB) or result in an earlier a maturity date that is prior to, or decreased decrease the weighted average life thereofthereof for the period ending before, the earlier of (x) the 180th day following the later of the Revolving Maturity Date and the Term Maturity Date and (y) the date on which such original Indebtedness matured;
(iii) Indebtedness of the Borrower Company to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings Company or any other Restricted Subsidiary, in each case ; provided that (A) Indebtedness of any Subsidiary that is not a Subsidiary Loan Party to the Company or any Subsidiary Loan Party shall be subject to Section 6.046.04 and (B) Indebtedness of any Loan Party to any Subsidiary that is not a Subsidiary Loan Party shall be subordinated to the Obligations on terms no less favorable to the Lenders than the subordination terms set forth in Exhibit E hereto;
(iv) Guarantees by the Borrower and by any Restricted Subsidiary Company of Indebtedness of Holdings, any Subsidiary (other than Indebtedness referred to in clause (vi) below); provided that Guarantees by the Borrower Company or any other Subsidiary, provided Subsidiary Loan Party of Indebtedness of any Subsidiary that such Guarantees are permitted by is not a Subsidiary Loan Party shall be subject to Section 6.04;
(v) Indebtedness of the Borrower Company or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vi) 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 (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereofIndebtedness; provided that (A) such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement and (B) the aggregate principal amount of Indebtedness permitted by this clause (v) (including extensions, renewals and replacements thereof) shall not exceed $5,000,000 at any time outstanding;
(vi) Indebtedness of any Person that becomes a Subsidiary after the date hereof (provided that (A) such Indebtedness exists at the time such Person becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary and (B) the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $25,000,000 5,000,000 at any time outstanding) and any refinancings, renewals and replacements of any such Indebtedness that do not (x) increase the outstanding principal amount thereof or (y) result in a maturity date that is prior to, or decrease the weighted average life thereof for the period ending before, the earlier of (1) the 180th day following the later of the Revolving Maturity Date and the Term Maturity Date and (2) the date on which such original Indebtedness matured;
(vii) Indebtedness of any Loan Party pursuant to Hedging Agreements permitted under Section 6.07;
(viii) unsecured Indebtedness of the Company or any Subsidiary incurred to a seller in connection with a Permitted Acquisition after the date hereof; provided that the aggregate principal amount of Indebtedness permitted by this clause (viii) shall not exceed $17,500,000 at any time outstanding;
(viiix) Indebtedness consisting of the China JV appeal or similar bonds required in connection with any judgment that has not resulted in an Event of Default under clause (k) of Article VII; and
(x) other unsecured Indebtedness in an aggregate principal amount not to exceed exceeding $20,000,000 2,000,000 at any time outstanding; provided that such Indebtedness is (A) secured only by assets of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
(viii) unsecured reimbursement obligations (contingent or otherwise) in respect of letters of credit issued to support obligations of the Borrower or any Restricted Subsidiary incurred in the ordinary course of business; provided that (A) the aggregate amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not at any time exceed $5,000,000 and (B) any disbursement in respect of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement is made; and
(ix) other Funded Indebtedness if, on the date of the creation, issuance, incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such date.
(b) Holdings will not create, incur, assume or permit to exist Neither the Company nor any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock)Interests; provided, except however, that (i) Holdings the Company may issue preferred stock or other preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdingsstock or Equity Interests are not, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdingsin each case, the Borrower or any Restricted SubsidiaryDisqualified Stock.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Parent Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term Loans, other than any Indebtedness created under the Loan Documents (including Incremental Term Loans, and Letters of CreditLoans incurred in compliance with 2.23);
(ii) Indebtedness existing on the Restatement Effective Date date hereof and set forth in Schedule 6.01 and extensions, renewals, replacements and refinancings and replacements of any such Indebtedness (made in accordance with clause (vi) of Section 6.08(b) with the proceeds of Permitted Refinancing Securities, in the case of Junior Debt Securities) that do not increase the outstanding principal amount thereof (other than except by the amount of any fees premium or expenses incurred fee paid or payable in the refinancing thereofconnection with such extension, renewal or replacement) or result in an earlier maturity date or decreased weighted average life thereof;
(iii) Indebtedness of the Parent Borrower to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings Parent Borrower or any other Restricted Subsidiary, in each case ; provided that Indebtedness of any Subsidiary that is not a Loan Party owing to any Loan Party shall be subject to Section 6.04;
(iv) Guarantees by the Parent Borrower of Indebtedness of any Subsidiary and by any Restricted Subsidiary of Indebtedness of Holdings, the Parent Borrower or any other Subsidiary, ; provided that such Guarantees are permitted by any Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 6.04;
(v) Indebtedness of the Parent Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vi) 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 (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof or result in an earlier maturity date or decreased weighted average life thereof; provided that (A) such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement and (B) the aggregate principal amount of Indebtedness permitted by this clause (v) and clause (vi) below shall not exceed $40,000,000 at any time outstanding;
(vi) Indebtedness of any Person that becomes a Subsidiary after the date hereof; provided that (A) such Indebtedness exists at the time such Person becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary and (B) the aggregate principal amount of Indebtedness permitted by this clause (vi) and clause (v) above shall not exceed $25,000,000 at any time outstandingbe subject to the limitation set forth in clause (v) above;
(vii) Indebtedness of the China JV Parent Borrower in an aggregate principal amount not to exceed $20,000,000 at respect of Permitted Debt Securities (other than Permitted Debt Securities that are permitted under clause (ii) above); provided that such Permitted Debt Securities are issued for cash consideration and the Net Proceeds therefrom are either applied as Monetary Acquisition Consideration in respect of a Permitted Acquisition within 30 days after receipt of such Net Proceeds (and deposited with the Administrative Agent until so applied) or treated as Net Proceeds of a Prepayment Event in respect of the incurrence of Indebtedness;
(viii) Indebtedness of the Parent Borrower or any time outstandingof its Subsidiaries 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 that such Indebtedness is repaid within two Business Days after being incurred;
(Aix) secured only by assets unsecured Indebtedness of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Parent Borrower or any other Restricted Subsidiary;
(viii) unsecured reimbursement obligations (contingent or otherwise) of its Subsidiaries as an account party in respect of letters of credit issued to support obligations for the account of the Parent Borrower or any Restricted Subsidiary incurred such Subsidiary, as the case may be, that either constitute trade letters of credit or are obtained in order to provide security for workers’ compensation claims or pension plans, payment obligations in connection with self-insurance, reclamation or closure liabilities or similar requirements, in each case in the ordinary course of business; provided that (A) such Indebtedness is not Guaranteed by any of the Parent Borrower or its Subsidiaries and (B) any Indebtedness resulting from a drawing under any such letter of credit is repaid within two Business Days after such drawing;
(x) obligations of the Parent Borrower or any of its Subsidiaries in respect of performance bonds and completion, guarantee, surety and similar bonds, in each case obtained in the ordinary course of business to support statutory and contractual obligations (other than Indebtedness) arising in the ordinary course of business;
(xi) industrial revenue bonds or similar tax-exempt Indebtedness of the Parent Borrower or any of its Subsidiaries incurred to finance the construction or improvement of operations of the Parent Borrower and its Subsidiaries in an aggregate principal amount not exceeding $50,000,000 at any time outstanding;
(xii) Indebtedness of Foreign Subsidiaries (other than Foreign Loan Parties) in an aggregate principal amount not exceeding $100,000,000 at any time outstanding;
(xiii) Indebtedness of the Parent Borrower issued as consideration for any Permitted Acquisition so long as such Indebtedness (A) is unsecured and subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent, and (B) satisfies all requirements set forth in the definition of the term Permitted Debt Securities;
(xiv) Guarantees by Foreign Subsidiaries located in Brazil of trade financing extended to customers by local financial institutions to purchase inventory from such Foreign Subsidiaries in the ordinary course; provided that (A) the aggregate principal amount of all financing subject to such letters of credit and unreimbursed disbursements in respect thereof Guarantees shall not at any time exceed $5,000,000 60,000,000 and (B) any disbursement in respect of Foreign Subsidiary providing any such letter Guarantee for the benefit of credit a customer shall be reimbursed indemnified by such customer for amounts that may be paid under such Guarantee, and such financing (and such indemnity by subrogation) shall be secured by a Lien against products of reasonably comparable or greater value at the time of such financing, or in full within three Business Days after such disbursement is madethe alternative, by promissory notes of third party producers in an equal or greater principal amount; and
(ixxv) other Funded Indebtedness if, on the date of the creation, issuance, incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such datean aggregate principal amount not exceeding $75,000,000 at any time outstanding.
(b) Holdings The Parent Borrower will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower willnot, nor will they it permit any Restricted Subsidiary to, issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock)Interests, except that (i) Holdings the Parent Borrower may issue preferred stock that does not constitute a Disqualified Equity Interest. Notwithstanding the foregoing, any Subsidiary shall be permitted to issue any preferred stock or other preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied Interest directly to Holdings and (ii) Holdings, the Parent Borrower or any Restricted Subsidiary Loan Party, provided that any such preferred stock or other preferred Equity Interest may issue directors’ qualifying shares not be sold, transferred or shares required otherwise disposed of by applicable law the Parent Borrower or such Subsidiary Loan Party to be held by a any Person (other than Holdings, the Borrower or any Restricted Subsidiary.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Parent Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as CollateralParty) unless (i) after such sale, transfer or other disposition, such Subsidiary shall no longer be a Subsidiary or (ii) the Parent Borrower has received the consent of the Required Lenders prior to any such transfer.
Appears in 1 contract
Samples: Credit Agreement (Mosaic Co)
Indebtedness; Certain Equity Securities. (a) The Borrower Transaction Parties will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term Loans, other than any Incremental Term Loans, Indebtedness created under the Loan Documents and Letters of Creditthe Existing Loan Documents;
(ii) Indebtedness existing on the Restatement Effective Date September 26, 1997, and set forth in Schedule 6.01 and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than by the amount of any fees or expenses incurred in the refinancing thereof) or result in an earlier maturity date or decreased weighted average life thereof, provided that the material terms of such extensions, renewals and replacements are at least as favorable to the Lenders as those of such Indebtedness;
(iii) Indebtedness of (a) any Loan Party that is not a Foreign Subsidiary to any other Loan Party that is not a Foreign Subsidiary (other than the Borrower or the Borrower Subsidiaries) and (b) the Borrower to Holdings or any Restricted Borrower Subsidiary and of any Restricted Borrower Subsidiary to the Borrower, Holdings Borrower or any other Restricted Borrower Subsidiary, in each case provided that Indebtedness of any Borrower Subsidiary that is not a Loan Party to the Borrower or any Subsidiary Loan Party shall be subject to Section 6.04;
(iv) Guarantees by the any Subsidiary Loan Party of Indebtedness of any Borrower Subsidiary and by any Restricted Borrower Subsidiary of Indebtedness of Holdings, the Borrower or any other such Borrower Subsidiary, provided that such Guarantees are permitted by the Borrower or any Subsidiary Loan Party of Indebtedness of any Borrower Subsidiary that is not a Loan Party shall be subject to Section 6.04;
(v) Indebtedness of the Borrower Borrower, Hechinger, Hechinger East Coast, BSQ Newco, Hechinger Stores or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vi) 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 (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof or result in an earlier maturity date or decreased weighted average life thereof; , provided that (A) such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement and (B) the aggregate principal amount of Indebtedness permitted by this clause (v) shall not exceed $15,000,000 at any time outstanding;
(vi) Indebtedness of any Person that becomes a Borrower Subsidiary after the date hereof, provided that (A) such Indebtedness exists at the time such Person becomes a Borrower Subsidiary and is not created in contemplation of or in connection with such Person becoming a Borrower Subsidiary and (B) the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $25,000,000 5,000,000 at any time outstanding;
(vii) the BSQ Newco Note, BSQ Acqco/Holdings Note and BSQ Newco/Builders Square Note;
(viii) Indebtedness under Hedging Agreements entered into in accordance with Section 6.06;
(ix) intentionally omitted;
(x) Indebtedness incurred in connection with the Receivables Purchase Agreements;
(xi) Indebtedness incurred in connection with the Company Owned Life Insurance Program, provided that the aggregate principal amount of Indebtedness permitted by this clause (xi) shall not exceed $45,000,000 at any time outstanding;
(xii) the China JV Existing Hechinger Public Indebtedness; and
(xiii) other unsecured Indebtedness in an aggregate principal amount not to exceed exceeding $20,000,000 10,000,000 at any time outstanding; , provided that such the aggregate principal amount of Indebtedness is (A) secured only by assets of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
(viii) unsecured reimbursement obligations (contingent or otherwise) in respect of letters of credit issued to support obligations of the Borrower or any Restricted Subsidiary incurred in the ordinary course of business; provided that Subsidiaries permitted by this clause (Axiii) the aggregate amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not exceed $2,000,000 at any time exceed $5,000,000 and (B) any disbursement in respect of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement is made; and
(ix) other Funded Indebtedness if, on the date of the creation, issuance, incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such dateoutstanding.
(b) Holdings will not createSubject to the provisions of Section 6.07, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness none of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower Transaction Parties will, nor will they permit any Restricted Subsidiary to, issue any preferred stock or other (except for preferred Equity Interests (including any Disqualified Stock), except that stock (i) Holdings may issue all dividends in respect of which are to be paid (and all other payments in respect of which are to be made) in additional shares of such preferred stock or other preferred Equity Interests stock, in lieu of Holdings cash, until the date that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and is at least 360 days following the Existing Facility Maturity Date, (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law that is not subject to be held by a Person redemption other than Holdings, redemption at the Borrower or any Restricted Subsidiary.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness option of the Bermuda IP Subsidiary owed Transaction Party issuing such preferred stock and (iii) all payments in respect of which are expressly subordinated to the Borrower Obligations) or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateralbe or become liable in respect of any obligation (contingent or otherwise) to purchase, redeem, retire, acquire or make any other payment in respect of (i) any shares of capital stock of any member of the Holdings Group or (ii) any option, warrant or other right to acquire any such shares of capital stock.
Appears in 1 contract
Samples: Credit Agreement (Hechinger Co)
Indebtedness; Certain Equity Securities. (a) The ---------------------------------------- Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term Loans, other than any Incremental Term Loans, and Letters of CreditIndebtedness created under the Loan Documents;
(ii) the Subordinated Loans;
(iii) the Subordinated Debt; provided that (A) the terms and -------- conditions of such Subordinated Debt and the related Subordinated Debt Documents (including terms and conditions relating to the interest rate, fees, maturity, redemption, subordination, covenants, events of default and remedies) shall be reasonably satisfactory in all respects to the Agents (it being understood that the terms and conditions contained in the Preliminary Offering Memorandum of Citation Corporation dated September 13, 1999 with respect to subordination are acceptable to the Agents) and (B) the proceeds therefrom are applied to pay fees and expenses of issuance of such Subordinated Debt and to refinance or replace the Subordinated Loans and, to the extent of any such proceeds in respect of Subordinated Debt in excess of the fees and expenses of issuance paid with such proceeds and the principal amount of Subordinated Loans so refinanced or replaced, to prepay Term Borrowings as provided in Section 2.11(c);
(iv) the Existing Indebtedness existing on the Restatement Effective Date date hereof and set forth in Schedule 6.01 and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than by the amount of any fees or expenses incurred in the refinancing thereof) or result in an earlier maturity date or decreased weighted average life thereof;
(iii) Indebtedness of the Borrower to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings or any other Restricted Subsidiary, in each case subject to Section 6.04;
(iv) Guarantees by the Borrower and by any Restricted Subsidiary of Indebtedness of Holdings, the Borrower or any other Subsidiary, provided that such Guarantees are permitted by Section 6.04;
(v) Indebtedness of the Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vi) 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 (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof; provided that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $25,000,000 at any time outstanding;
(vii) Indebtedness of the China JV in an aggregate principal amount not to exceed $20,000,000 at any time outstanding; provided that such Indebtedness is (A) secured only by assets of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
(viii) unsecured reimbursement obligations (contingent or otherwise) in respect of letters of credit issued to support obligations of the Borrower or any Restricted Subsidiary incurred in the ordinary course of business; provided that (A) the aggregate amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not at any time exceed $5,000,000 and (B) any disbursement in respect of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement is made; and
(ix) other Funded Indebtedness if, on the date of the creation, issuance, incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such date.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock), except that (i) Holdings may issue preferred stock or other preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted Subsidiary.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Holdings and the Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any IndebtednessIndebtedness or any Attributable Debt, except:
(i) Term Loans, Indebtedness created under the Loan Documents and any Permitted Subordinated Indebtedness or other than any Incremental Term Loans, and Letters unsecured Indebtedness of Creditthe Borrower or its Subsidiaries in each case to the extent the Net Proceeds thereof are used to refinance Indebtedness created under the Loan Documents;
(ii) the Senior Subordinated Debt and Refinancing Indebtedness in respect thereof;
(iii) the Senior Unsecured Debt and Refinancing Indebtedness in respect thereof;
(iv) Indebtedness existing on the Restatement Effective Closing Date and set forth in Schedule 6.01 and extensions, renewals, refinancings and replacements of any such Refinancing Indebtedness that do not increase the outstanding principal amount thereof (other than by the amount of any fees or expenses incurred in the refinancing respect thereof) or result in an earlier maturity date or decreased weighted average life thereof;
(iii) Indebtedness of the Borrower to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings or any other Restricted Subsidiary, in each case subject to Section 6.04;
(iv) Guarantees by the Borrower and by any Restricted Subsidiary of Indebtedness of Holdings, the Borrower or any other Subsidiary, provided that such Guarantees are permitted by Section 6.04;
(v) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any Restricted other Subsidiary; provided that Indebtedness of any Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by that is not a Loan Party to the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect or any Subsidiary Loan Party shall be subject to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrenceSection 6.04;
(vi) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of any other Subsidiary; provided that Guarantees by the Borrower or any Subsidiary Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 6.04;
(A) Indebtedness and Attributable Debt 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 (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than by an amount not greater than fees and expenses, including premium and defeasance costs, associated therewith) or result in a decreased average weighted life thereof; provided that (1) such Indebtedness or Attributable Debt is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement and (2) the aggregate principal amount of Indebtedness and Attributable Debt permitted by this clause (vii) shall not exceed $45,000,000 at any time outstanding;
(viii) Indebtedness of any Person that becomes a Subsidiary after the Closing Date; provided that (A) such Indebtedness exists at the time such Person becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary (except to the extent such Indebtedness refinanced other Indebtedness to facilitate such entity becoming a Subsidiary) and (B) the aggregate principal amount of Indebtedness permitted by this clause (viviii) shall not exceed $25,000,000 45,000,000 at any time outstanding;
(viiix) other unsecured Indebtedness of the China JV in an aggregate principal amount not to exceed exceeding $20,000,000 75,000,000 at any time outstanding; ;
(x) Third Party Interests issued by Securitization Vehicles in Securitizations permitted by Section 6.05, and Indebtedness represented by such Third Party Interests and Indebtedness consisting of Standard Securitization Undertakings, provided that the aggregate amount of such Third Party Interests shall not exceed $232,000,000 at any time outstanding;
(xi) Permitted Subordinated Indebtedness is (Aand any related Permitted Subordinated Guarantee) secured only by assets of the China JV and not by assets of any other unsecured Indebtedness, in each case without any limitation as to amount so long as Holdings, the Borrower and the Subsidiaries are in Pro Forma Compliance after giving effect to the incurrence of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;such Indebtedness; and
(viiixii) unsecured reimbursement obligations Permitted Subordinated Indebtedness (contingent or otherwiseand any related Permitted Subordinated Guarantee) in respect of letters of credit issued incurred to support obligations of the Borrower or any Restricted Subsidiary incurred in the ordinary course of businessfinance a Permitted Acquisition; provided that (A1) such Indebtedness is incurred at the time of or within 90 days after consummation of such Permitted Acquisition and (2) the aggregate principal amount of all such letters of credit and unreimbursed disbursements in respect thereof Indebtedness permitted by this clause (xii) shall not exceed $300,000,000 at any time exceed $5,000,000 and (B) any disbursement in respect of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement is made; and
(ix) other Funded Indebtedness if, on the date of the creation, issuance, incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such dateoutstanding.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock)Interests, except that (i) Holdings may issue preferred stock or other preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted SubsidiaryThird Party Interests issued by Securitization Vehicles.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The None of Holdings, the Parent Borrower or any Foreign Subsidiary Borrower will, nor will not, and Holdings and the Borrower will not they permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term LoansIndebtedness created under the Loan Documents; provided that (x)(A) Revolving Loans may only be used to finance a Permitted Acquisition if, in addition to the satisfaction of all other requirements necessary to effect such Permitted Acquisition set forth herein, after giving effect to such Permitted Acquisition (and any related incurrence or repayment of Indebtedness), the Senior Leverage Ratio is less than 2.75 to 1.00 and (B) the amount of Revolving Loans used to finance Permitted Acquisitions outstanding at any time shall not exceed $150,000,000 less (i) the Available Funds Reserve Amount at such time plus (ii) the amount of Available Funds in the Debenture Account at such time, (y) until the Convertible Debentures have been irrevocably repurchased, redeemed, repaid or otherwise retired in full, Revolving Loans outstanding may not exceed the aggregate Revolving Commitments less the amount designated as available for the repurchase, redemption, repayment or retirement of Convertible Debentures pursuant to Section 5.15(b) and (z) at all times, the amount of Revolving Loans outstanding used for general corporate purposes (other than any Incremental Term Loans, Permitted Acquisitions) and Letters of CreditRevolving Commitments available for general corporate purposes (other than Permitted Acquisitions) at such time shall be at least $100,000,000;
(ii) the Permitted Receivables Financing; provided that the Permitted Receivables Financing may only be 110 used to finance a Permitted Acquisition if, in addition to the satisfaction of all other requirements necessary to effect such Permitted Acquisition set forth herein, after giving effect to such Permitted Acquisition (and any related incurrence or repayment of Indebtedness), the Senior Leverage Ratio is less than 2.75 to 1.00;
(iii) [intentionally omitted];
(iv) Indebtedness existing on the Restatement Effective Date date hereof and set forth in Schedule 6.01 to the Original Credit Agreement and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than by the amount of any fees or expenses incurred in the refinancing thereof) as specified on such Schedule 6.01 or result in an earlier maturity date or decreased weighted average life thereof;
(iiiv) the Convertible Debentures;
(vi) the Existing Subordinated Notes;
(vii) the Permitted Subordinated Notes and the Permitted Senior Notes; provided that (x) Permitted Subordinated Notes and Permitted Senior Notes may only be used for the repayment of Revolving Borrowings and obligations arising in respect of the Permitted Receivables Financing if, after giving effect to the incurrence of such Permitted Subordinated Notes or Permitted Senior Notes, the Senior Leverage Ratio is less than 2.75 to 1.00 and (y) the aggregate amount of proceeds of Permitted Subordinated Notes and Permitted Senior Notes used for the repayment of Revolving Borrowings and obligations arising in respect of the Permitted Receivables Financing may not exceed $250,000,000;
(viii) Indebtedness of the Parent Borrower to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings Parent Borrower or any other Restricted Subsidiary, in each case ; provided that Indebtedness of any Subsidiary that is not a Domestic Loan Party to the Parent Borrower or any Subsidiary Loan Party shall be subject to Section 6.04;
(ivix) Guarantees by the Parent Borrower of Indebtedness of any Subsidiary and by any Restricted Subsidiary of Indebtedness of Holdings, the Parent Borrower or any other Subsidiary, ; provided that such (a) Guarantees are permitted by the Parent Borrower or any Subsidiary Loan Party of Indebtedness of any Subsidiary that is not a Domestic Loan Party shall be subject to Section 6.046.04 and (b) this clause (ix) shall not apply to Guarantees of the Existing Subordinated Notes, Permitted Subordinated Notes, the Permitted Senior Notes or the TriMas Notes;
(vx) Guarantees by Holdings, the Parent Borrower or any Subsidiary, as the case may be, in respect of the Existing Subordinated Notes, Permitted Subordinated Notes and the Permitted Senior Notes; provided that none of Holdings, the Parent Borrower or any Subsidiary, as the case may be, shall Guarantee the Existing Subordinated Notes, the Permitted Subordinated Notes or the Permitted Senior Notes unless (A) it also has Guaranteed the Obligations pursuant to the Guarantee Agreement and (B) such Guarantee of the Existing Subordinated Notes or the Permitted Subordinated Notes is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Existing Subordinated Notes;
(xi) Indebtedness of the Parent Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vi) 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 (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof or result in an earlier maturity date or decreased weighted average life thereof; provided that (A) such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement and (B) the aggregate principal amount of Indebtedness permitted by this clause (vixi) shall not exceed $50,000,000 at any time outstanding;
(xii) Indebtedness arising as a result of an Acquisition Lease Financing;
(xiii) Indebtedness of any Person that becomes a Subsidiary after the date hereof; provided that (A) such Indebtedness exists at the time such Person becomes a Subsidiary and is not created in contempla tion of or in connection with such Person becoming a Subsidiary and (B) the aggregate principal amount of Indebtedness permitted by this clause (xiii) shall not exceed $25,000,000 at any time outstanding;, less the liquidation value of any outstanding Assumed Preferred Stock; 112
(viixiv) Indebtedness of Holdings, the China JV Parent Borrower or any Subsidiary in respect of workers' compensation claims, self-insurance obligations, performance bonds, surety appeal or similar bonds and completion guarantees provided by Holdings, the Parent Borrower and the Subsidiaries in the ordinary course of their business; and
(xv) other unsecured Indebtedness of Holdings, the Parent Borrower or any Subsidiary in an aggregate principal amount not to exceed exceeding $20,000,000 at any time outstanding; provided that such Indebtedness is , less the liquidation value of any applicable Qualified Holdings Preferred Stock issued and outstanding pursuant to clause (Ab) secured only by assets of the China JV and not by assets definition of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
(viii) unsecured reimbursement obligations (contingent or otherwise) in respect of letters of credit issued to support obligations of the Borrower or any Restricted Subsidiary incurred in the ordinary course of business; provided that (A) the aggregate amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not at any time exceed $5,000,000 and (B) any disbursement in respect of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement is made; and
(ix) other Funded Indebtedness if, on the date of the creation, issuance, incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such dateQualified Holdings Preferred Stock.
(b) Holdings will not createNone of Holdings, incur, assume the Parent Borrower or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Foreign Subsidiary Borrower will, nor will they permit any Restricted Subsidiary to, issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock)Interests, except that (i) Holdings may issue Preferred Stock, (ii) Qualified Holdings Preferred Stock, (iii) Assumed Preferred Stock and (iv) preferred stock or other preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted held by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdings, the Parent Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted Subsidiary.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.
Appears in 1 contract
Samples: Credit Agreement (Metaldyne Corp)
Indebtedness; Certain Equity Securities. (a) The Each of Holdings and the Borrower will not, and Holdings and the Borrower each, as applicable, will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term Loans, other than any Incremental Term Loans, and Letters of CreditIndebtedness created under the Loan Documents;
(ii) Indebtedness existing on the Restatement Effective Date date hereof and set forth in Schedule 6.01 and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than by the amount of any fees or expenses incurred in the refinancing thereof) or result in an earlier maturity date or decreased weighted average life thereof;
(iii) Indebtedness of the Borrower to Holdings or any Restricted other Subsidiary and of any Restricted Subsidiary other than the Borrower to the Borrower, Holdings Borrower or any other Restricted Subsidiary, in each case ; PROVIDED that Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary Loan Party shall be subject to Section 6.04;
(iv) Guarantees by the Borrower of Indebtedness of any other Subsidiary and by any Restricted Subsidiary other than the Borrower of Indebtedness of Holdings, the Borrower or any other Subsidiary, provided ; PROVIDED that such Guarantees are permitted by the Borrower or any other Subsidiary Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 6.04;
(v) Indebtedness of the Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vi) 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 (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof or result in an earlier maturity date or decreased weighted average life thereof; provided PROVIDED that (A) such Indebtedness is incurred prior to or within 90 days after such acquisition or the 50 construction or improvement and (B) the aggregate principal amount of Indebtedness permitted by this clause (v) shall not exceed $15,000,000 at any time outstanding;
(vi) Indebtedness of any Person that becomes a Subsidiary after the date hereof; PROVIDED that (A) such Indebtedness exists at the time such Person becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary and (B) the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $25,000,000 10,000,000 at any time outstanding;
(vii) other unsecured Indebtedness of the China JV in an aggregate principal amount not to exceed exceeding $20,000,000 15,000,000 at any time outstanding; provided PROVIDED that such the aggregate principal amount of Indebtedness is of the Borrower's Subsidiaries permitted by this clause (vii) shall not exceed $5,000,000 at any time outstanding;
(viii) Indebtedness under Hedging Agreements entered into in accordance with Section 6.07;
(ix) Indebtedness under the Transferred Inventory Note any BMS Promissory Notes issued in accordance with the Manufacture and Supply Agreement; and
(x) Indebtedness of the Borrower incurred (A) secured only in consideration for the repurchase, redemption, retirement or other acquisition of shares of its Capital Stock, or options or warrants for the purchase of shares of its Capital Stock, held by assets officers, directors or employees of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;Subsidiary pursuant to a compensation plan or arrangement in connection with the death, disability or termination of employment of such officer, director or employee or (B) in exchange for or in payment of Indebtedness permitted under Section 6.01(a)(x)(A); PROVIDED that such Indebtedness is subordinate to the Senior Obligations to at least the same extent as the BMS Promissory Notes are subordinate to the Senior Obligations.
(viiib) unsecured reimbursement obligations Each of Holdings and the Borrower will not, and each, as applicable, will not permit any Subsidiary to, issue any preferred stock (except for preferred stock (i) that is not subject to redemption other than redemption at the option of the Borrower or such Subsidiary and (ii) all payments in respect of which are expressly subordinated to the Senior Obligations) or be or become liable in respect of any obligation (contingent or otherwise) to purchase, redeem, retire, acquire or make any other payment in respect of letters of credit issued to support obligations any Capital Stock of the Borrower or any Restricted other Subsidiary incurred in the ordinary course of business; provided that (A) the aggregate amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not at or any time exceed $5,000,000 and (B) any disbursement in respect of option, warrant or other right to acquire any such letter of credit shall be reimbursed in full within three Business Days after such disbursement is made; andCapital Stock, except as permitted under Section 6.09(c).
(ixc) other Funded Indebtedness ifNotwithstanding anything provided in this Section 6.01, on each of Holdings and the date of the creationBorrower will not, issuance, incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b)each, as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such date.
(b) Holdings will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness except that constitutes Senior Debt (i) Indebtedness created under as defined in the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock), except that (i) Holdings may issue preferred stock or other preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted Subsidiary.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this SectionBMS Promissory Notes) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as CollateralSenior Obligations.
Appears in 1 contract
Samples: Credit Agreement (Endo Pharmaceuticals Holdings Inc)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, Attributable Debt or Funded Receivables Sales, except:
(i) Term Loans, other than any Incremental Term Loans, and Letters of CreditIndebtedness created under the Loan Documents;
(ii) the Senior Notes in an aggregate amount not in excess of $196,452,000 at any time outstanding, the Senior Second Lien Notes in an aggregate amount not in excess of $200,000,000 at any time outstanding, and, in each case, related Guarantees by Subsidiary Loan Parties;
(iii) the Capital Securities in an aggregate amount not in excess of $200,000,000 at any time outstanding and the Pollution Control Bonds in an aggregate amount not in excess of $10,000,000 at any time outstanding;
(iv) Indebtedness existing on the Restatement Effective Date date hereof and set forth in Schedule 6.01 and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than by the amount of any fees or expenses incurred in the refinancing thereof) or result in an earlier maturity date or decreased weighted average life thereof;
(iiiv) Indebtedness of the Borrower to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings Borrower or any other Restricted Subsidiary, in each case ; provided that Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary Loan Party shall be subject to Section 6.04;
(ivvi) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Restricted Subsidiary of Indebtedness of Holdings, any other Subsidiary; provided that Guarantees by the Borrower or any other Subsidiary, provided Subsidiary Loan Party of Indebtedness of any Subsidiary that such Guarantees are permitted by is not a Loan Party shall be subject to Section 6.04;
(v) Indebtedness of the Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vivii) 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 (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof or result in an earlier maturity date or decreased weighted average life thereof; provided that such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement;
(viii) Indebtedness and Attributable Debt in respect of Sale-Leaseback Transactions not in excess of $75,000,000 in the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $25,000,000 at any time outstanding;
(viii) Indebtedness and Funded Receivables Sales of Restricted Subsidiaries that are Securitization Vehicles (including Indebtedness in respect of Third Party Securities) in an aggregate amount not in excess of $250,000,000 at any time outstanding and (ii) Indebtedness of the China JV Borrower and Restricted Subsidiaries consisting solely of Liens on their Sellers’ Retained Interests in connection with Securitizations permitted by Section 6.04 securing obligations in respect of Third Party Securities in an aggregate principal amount not to exceed in excess of $20,000,000 250,000,000 at any time outstandingoutstanding minus the then outstanding amount of Indebtedness and Funded Receivables Sales incurred in reliance on clause (i) of this paragraph;
(x) Indebtedness of LOL Finance and its Wholly Owned Subsidiaries incurred in the ordinary course of business to finance their assets; provided that such Indebtedness (x) is (A) secured only by assets of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
, except to the extent permitted pursuant to clause (viiivii) unsecured reimbursement obligations above and (contingent or otherwisey) in respect of letters of credit issued to support obligations of the Borrower or any Restricted Subsidiary incurred in the ordinary course of business; provided that (A) the aggregate amount of all such letters of credit and unreimbursed disbursements in respect thereof shall does not exceed $150,000,000 at any time exceed $5,000,000 and (B) any disbursement in respect of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement is madeoutstanding; and
(ixxi) other Funded Indebtedness ifPermitted Additional Debt; provided that immediately prior to, on the date of the creation, issuance, incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be createdto, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds incurrence of such Funded Indebtedness on or within 10 days after such datePermitted Additional Debt, the Borrower is in Pro Forma Compliance.
(b) Holdings The Borrower will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, to issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock), except that (i) Holdings may issue preferred stock or other preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted SubsidiaryInterests.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.
Appears in 1 contract
Samples: Five Year Revolving Credit Agreement (Land O Lakes Inc)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term Loans, other than any Incremental Term Loans, (x) Indebtedness created under the Loan Documents (and Letters Permitted Bridge Refinancings thereof) and (y) Indebtedness created under the Tranche B Loan Documents (as defined in the Tranche C Credit Agreement) not to exceed an aggregate principal amount of Credit$1,225,000,000 and (z) Indebtedness created under the Loan Documents (as defined in the Tranche C Credit Agreement) not to exceed an aggregate principal amount of $2,500,000,000 (less the principal outstanding amount of Liberty Bonds);
(ii) the Convertible Notes;
(iii) Indebtedness existing on the Restatement Effective Date date hereof and set forth in Schedule 6.01 (other than the Existing Credit Agreement and the Existing Tranche C Credit Agreement) and refinancings, extensions, renewals, refinancings renewals and replacements of any such Indebtedness, provided that such refinancing, extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that do was not increase an obligor with respect to the outstanding Indebtedness being refinanced, extended, renewed or replaced, (B) shall not be in a principal amount thereof that exceeds the principal amount of the Indebtedness being refinanced, extended, renewed or replaced (other than plus any accrued but unpaid interest and premium or penalty payable by the amount terms of any such Indebtedness thereon and reasonable fees or and expenses incurred in the refinancing thereofassociated therewith), (C) or result in shall not have an earlier maturity date or decreased shorter weighted average life thereofthan the Indebtedness being refinanced, extended, renewed or replaced and (D) if the Indebtedness being refinanced, extended, renewed or replaced is subordinated to the Obligations, such Indebtedness shall be subordinated to the Obligations on the same terms as the Indebtedness being refinanced, extended, renewed or replaced;
(iiiiv) Indebtedness of the Borrower to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings Borrower or any other Restricted SubsidiarySubsidiary (other than Indebtedness of any Broker Dealer Subsidiary or the RIE to a Subsidiary that is not a Loan Party), in each case provided that (A) Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any other Loan Party shall be subject to Section 6.04, (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any other Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent and (C) Indebtedness of the Additional Borrower to Borrower shall be pursuant to one or more intercompany loans or notes (collectively, the “Additional Borrower Intercompany Loan”) reasonably satisfactory to the Administrative Agent;
(ivv) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Restricted Subsidiary (other than any Broker Dealer Subsidiary or the RIE) of Indebtedness of Holdings, the Borrower or any other Subsidiary, provided that such Guarantees are (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(iii) or (a)(vii)), (B) Guarantees by the Borrower or any other Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 6.04, (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations, (D) none of the Convertible Notes shall be guaranteed by any Subsidiary and (E) any Guarantee by the Borrower of the Convertible Notes (the “Parent Convertible Note Guarantee”) shall be subordinated to the Obligations to the same extent and on the same terms as the Parent Convertible Note Guarantee is subordinated to the Obligations on and as of the Effective Date;
(vA) Indebtedness of the Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal (other than any Broker Dealer Subsidiary or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(viRIE) 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 (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) 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, provided that such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, and (B) extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase so long as the outstanding principal amount thereof; of such refinancings, extensions, renewals and replacements does not exceed the principal amount of the Indebtedness being refinanced, extended, renewed or replaced (plus any accrued but unpaid interest and premium or penalty payable by the terms of such Indebtedness thereon and reasonable fees and expenses associated therewith), provided that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $25,000,000 20,000,000 at any time outstanding;
(vii) other unsecured Indebtedness of the China JV Borrower and the Subsidiaries (other than Indebtedness of the Broker Dealer Subsidiaries or the RIE) in an aggregate principal amount not to exceed exceeding $20,000,000 at any time outstanding; , provided that such the aggregate principal amount of Indebtedness is (A) secured only by assets of the China JV and Subsidiaries that are not Loan Parties permitted by assets of Holdings, the Borrower of this clause (vii) shall not exceed $5,000,000 at any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiarytime outstanding;
(viii) unsecured reimbursement Indebtedness owed to any Person (including obligations (contingent or otherwise) in respect of letters of credit issued for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to support reimbursement or indemnification obligations of the Borrower or any Restricted Subsidiary to such Person, in each case incurred in the ordinary course of business; provided that (A) the aggregate amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not at any time exceed $5,000,000 and (B) any disbursement in respect of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement is made; and;
(ix) other Funded Indebtedness if, on the date of the creationBorrower or any Subsidiary (other than any Broker Dealer Subsidiary or the RIE) in respect of performance bonds, issuancebid bonds, incurrence or assumption appeal bonds, surety bonds, performance and completion guarantees and similar obligations (other than in respect of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateralother Indebtedness), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for provided in the most recent period ordinary course of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such date.business;
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (ix) Indebtedness created under the Loan Documents, in respect of Swap Agreements permitted by Section 6.07;
(iixi) Indebtedness permitted under clause arising from the honoring by a bank or financial institution of a check or similar instrument drawn against insufficient funds in the ordinary course of business, so long as such Indebtedness is repaid within five Business Days;
(a)(iiixii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock), except that (i) Holdings may issue preferred stock or other preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied TRF owing to Holdings and (ii) Holdings, the Borrower or another Subsidiary not to exceed $10,000,000 at any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted Subsidiary.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.time outstanding;
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any IndebtednessIndebtedness or any Attributable Debt, except:
(i) Term Loans, other than any Incremental Term Loans, and Letters of CreditIndebtedness created under the Loan Documents;
(ii) the Senior Subordinated Debt, the Senior Unsecured Debt and, in each case, Refinancing Indebtedness in respect thereof;
(iii) [Reserved];
(iv) Indebtedness existing on the Restatement Effective Date date hereof and set forth in Schedule 6.01 and extensions, renewals, refinancings and replacements of any such Refinancing Indebtedness that do not increase the outstanding principal amount thereof (other than by the amount of any fees or expenses incurred in the refinancing respect thereof) or result in an earlier maturity date or decreased weighted average life thereof;
(iii) Indebtedness of the Borrower to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings or any other Restricted Subsidiary, in each case subject to Section 6.04;
(iv) Guarantees by the Borrower and by any Restricted Subsidiary of Indebtedness of Holdings, the Borrower or any other Subsidiary, provided that such Guarantees are permitted by Section 6.04;
(v) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any Restricted other Subsidiary; provided that (i) any such Indebtedness owed by a Loan Party is subordinated to the Obligations pursuant to the Affiliate Subordination Agreement and (ii) Indebtedness of any Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by that is not a Loan Party to the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect or any Subsidiary Loan Party shall be subject to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrenceSection 6.04;
(vi) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of any other Subsidiary; provided that Guarantees by the Borrower or any Subsidiary Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 6.04;
(vii) Indebtedness and Attributable Debt 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 (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than by an amount not greater than fees and expenses, including premium and defeasance costs, associated therewith) or result in a decreased average weighted life thereof; provided that (1) such Indebtedness (but not Attributable Debt) is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement and (2) the aggregate principal amount of Indebtedness and Attributable Debt permitted by this clause (vii) shall not at any time exceed (x) the greater of $75,000,000 and 4% of Consolidated Total Assets minus (y) the aggregate principal amount of Indebtedness outstanding pursuant to Section 6.01(a)(viii);
(viii) Indebtedness of any Person that becomes a Subsidiary after the date hereof; provided that (A) such acquired Indebtedness exists at the time such Person becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary (except to the extent such acquired Indebtedness refinanced other Indebtedness to facilitate such entity becoming a Subsidiary) and (B) the aggregate principal amount of Indebtedness permitted by this clause (viviii) shall not at any time exceed (x) the greater of $75,000,000 and 4% of Consolidated Total Assets minus (y) the aggregate principal amount of Indebtedness outstanding pursuant to Section 6.01(a)(vii);
(ix) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations are reimbursed not later than 30 days following such incurrence;
(x) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services in the ordinary course of business, provided that (i) such Indebtedness (other than credit or purchase cards) is extinguished within ten Business Days of its incurrence and (ii) such Indebtedness in respect of credit or purchase cards is extinguished within 60 days from its incurrence;
(xi) Indebtedness arising from agreements of the Borrower or any Subsidiary providing for indemnification, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the disposition of any business, assets or a Subsidiary permitted hereunder, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition;
(xii) Indebtedness of Foreign Subsidiaries in an aggregate amount outstanding at any time not to exceed 2.0% of Consolidated Total Assets at such time;
(xiii) Third Party Interests issued by Securitization Vehicles in Securitizations permitted by Section 6.05, and Indebtedness represented by such Third Party Interests and Indebtedness consisting of Standard Securitization Undertakings, provided that the aggregate amount of such Third Party Interests shall not exceed $25,000,000 100,000,000 at any time outstanding;
(viixiv) Indebtedness of the China JV in an aggregate principal amount not to exceed $20,000,000 at any time outstanding; provided that such Indebtedness is (A) secured only by assets of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
(viii) unsecured reimbursement obligations (contingent or otherwise) in respect of letters of credit issued to support obligations of the Borrower or any Restricted Subsidiary incurred performance bonds, bid bonds, appeal bonds, surety bonds, financial assurances and completion guarantees and similar obligations, in each case provided in the ordinary course of business; provided that , including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(Axv) the aggregate amount of all such letters of credit premium (if any), interest (including post-petition interest), fees, expenses, charges and unreimbursed disbursements additional or contingent interest on obligations described in respect thereof shall not at any time exceed $5,000,000 paragraphs (i) through (xiv) above and paragraph (Bxvi) any disbursement below;
(xvi) cash management obligations and other Indebtedness in respect of netting services, overdraft protection and similar arrangements, in each case, in connection with cash management and deposit accounts;
(xvii) [Reserved];
(xviii) [Reserved];
(xix) unsecured Indebtedness of the Borrower or any such letter of credit shall be reimbursed in full within three Business Days after such disbursement is madeits Subsidiaries so long as, on a Pro Forma Basis, the Total Leverage Ratio does not exceed 6.00 to 1.00; and
(ixxx) other Funded Indebtedness ifof the Borrower or any of its Subsidiaries so long as, on the date of the creation, issuance, incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral)a Pro Forma Basis, (xi) the Net Secured Leverage Ratio is less than 4.00 does not exceed 4.50 to 1.00 and (yii) if such Indebtedness is Secured Funded Indebtedness, the Secured Total Leverage Ratio is less than 2.5 does not exceed 6.00 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such date1.00.
(b) Holdings The Borrower will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower willnot, nor will they it permit any Restricted Subsidiary to, issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock)Interests, except that other than (i) Non-Cash Pay Preferred Stock of the Borrower, issued to Holdings may issue and pledged pursuant to the Collateral Agreement, (ii) preferred stock or other preferred Equity Interests of Holdings that are not Disqualified Stock a Subsidiary, issued to a Loan Party and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied pledged pursuant to Holdings the Collateral Agreement and (iiiii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required Third Party Interests issued by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted SubsidiarySecuritization Vehicles.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.
Appears in 1 contract
Samples: Credit Agreement (Hawaiian Telcom Communications, Inc.)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and Holdings and the Borrower nor will not it permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
: (iand provided, however, that during the Senior Period no Indebtedness described in clauses (i)(B), (ii), (iii)(B), (iv), (vii), (viii), (ix), (x), (xii), (xiii), (xx) Term Loans(in excess of $99,000,000), (xxi) or (xxii) below may be incurred by the Borrower or any Subsidiary (other than any Incremental Term Loans, and Letters of Credit;
(ii) Indebtedness existing on the Restatement Effective Fifth Amendment Date and set forth in Schedule 6.01 6.01A and (B) extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof as specified on such Schedule 6.01A or result in an earlier maturity date or decreased weighted average life thereof)):
(other than i) (A) Indebtedness created under the Loan Documents and, (B) any Permitted Term Loan Refinancing Indebtedness, and (C) Indebtedness under the Senior Loan Documents;
(ii) (A) financings in respect of sales of accounts receivable by a Foreign Subsidiary permitted by Section 6.05(c), (B) the amount Specified Vendor Receivables Financing and (C) the Specified Vendor Payables Financing;
(iii) (A) Indebtedness existing on the date hereof and set forth in Schedule 6.01 and (B) extensions, renewals and replacements of any fees or expenses incurred in such Indebtedness that do not increase the refinancing thereof) outstanding principal amount as specified on such Schedule 6.01 or result in an earlier maturity date or decreased weighted average life thereof;
(iiiiv) Indebtedness Permitted Unsecured Debt of the Borrower; provided that the Net Leverage Ratio (disregarding the proceeds of such Permitted Unsecured Debt in calculating Unrestricted Domestic Cash), on a pro forma basis after giving effect to the incurrence of such Permitted Unsecured Debt (and any related repayment of Indebtedness) and recomputed as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements are available, as if such incurrence (and any related repayment of Indebtedness) had occurred on the first day of the relevant period is no greater than 4.00 to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings or any other Restricted Subsidiary, in each case subject to Section 6.04;
(iv) Guarantees by the Borrower and by any Restricted Subsidiary of Indebtedness of Holdings, the Borrower or any other Subsidiary, provided that such Guarantees are permitted by Section 6.041.00;
(v) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any Restricted other Subsidiary; provided that Indebtedness of any Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by that is not a Loan Party to the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect or any Subsidiary Loan Party shall be subject to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrenceSection 6.04;
(vi) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary; provided that Guarantees by the Borrower or any Subsidiary Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 6.04;
(vii) Guarantees by the Borrower or any Subsidiary, as the case may be, in respect of (A) any Permitted Term Loan Refinancing Indebtedness, (B) any Alternative Incremental Debt or (C) any Permitted Unsecured Debt; provided that none of the Borrower or any Subsidiary, as the case may be, shall Guarantee such Indebtedness unless it also has Guaranteed the Obligations pursuant to the Guarantee and Collateral Agreement;
(viii) 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 (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof or result in an earlier maturity date or decreased weighted average life thereof; provided that (A) such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement and (B) the aggregate principal amount of Indebtedness permitted by this clause (viviii) shall not exceed $20,000,000 at any time outstanding;
(ix) Indebtedness arising as a result of an Acquisition Lease Financing or any other sale and leaseback transaction permitted under Section 6.06;
(x) Indebtedness of any Person that becomes a Subsidiary after the Closing Date; provided that (A) such Indebtedness exists at the time such Person becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary and (B) the aggregate principal amount of Indebtedness permitted by this clause (x) shall not exceed $25,000,000 at any time outstanding, less the liquidation value of any outstanding Assumed Preferred Stock;
(viixi) Indebtedness of the China JV Borrower or any Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety appeal or similar bonds and completion guarantees provided by the Borrower and the Subsidiaries in the ordinary course of their business;
(xii) other unsecured Indebtedness of the Borrower or any Subsidiary in an aggregate principal amount not exceeding $15,000,000 at any time outstanding, less the liquidation value of any applicable Qualified Borrower Preferred Stock issued and outstanding pursuant to clause (b) of the definition of Qualified Borrower Preferred Stock;
(xiii) secured Indebtedness in an aggregate amount not exceeding $50,000,000 at any time outstanding, in each case in respect of Indebtedness of Foreign Subsidiaries;
(xiv) 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;
(xv) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business;
(xvi) 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;
(xvii) 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, including obligations under Bank Products (as defined in the ABL Credit Agreement as in effect on the date hereof) other than Hedging Agreements, of the Borrower and its Subsidiaries incurred in the ordinary course of business;
(xviii) unsecured guarantees by the Borrower or any Subsidiary Loan Party of facility leases of any Loan Party;
(xix) payment obligations of or Guarantees by the Borrower or any Subsidiary Loan Party with respect to any Hedging Agreement permitted under Section 6.07 hereof; provided that if such Hedging Agreement is related to interest rates, (A) such Hedging Agreement shall relate to payment obligations on Indebtedness otherwise permitted to be incurred by the Loan Documents and (B) the notional amount of such Hedging Agreement shall not exceed the principal amount of the Indebtedness to which such Hedging Agreement relates;
(xx) Indebtedness of the Borrower, any Subsidiary Loan Party or any ABL Foreign Loan Party under the ABL Credit Agreement in an aggregate principal amount at any one time outstanding not to exceed the greater of (i) $150,000,000 and (ii) the Borrowing Base as of the date of such incurrence;
(xxi) Alternative Incremental Debt; provided that the aggregate principal amount of any Alternative Incremental Debt established on any date shall not exceed (i) (together with the aggregate amount of all Incremental Term Commitments established on such date in reliance on the Base Incremental Amount) an amount equal to the Base Incremental Amount on such date and (ii) an additional amount subject to the Maximum Alternative Incremental Debt Amount as of such date;
(xxii) any Capital Lease Obligations of a Person that becomes a Subsidiary pursuant to the Westfalia Acquisition; provided that (A) such Capital Lease Obligation exists at the time such Person becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary and (B) the aggregate principal amount of Indebtedness permitted by this clause (xxii) shall not exceed $15,000,000 at any time outstanding; and
(xxiii) any Permitted Convertible Indebtedness and replacements or refinancings thereof in an aggregate principal amount not to exceed $20,000,000 125 million at any the time outstanding; provided that such Indebtedness is (A) secured only by assets of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
(viii) unsecured reimbursement obligations (contingent or otherwise) in respect of letters of credit issued to support obligations of the Borrower or any Restricted Subsidiary incurred in the ordinary course of businessissuance; provided that (Ai) no Default or Event of Default has occurred and is continuing at the aggregate amount time of all issuance of such letters of credit and unreimbursed disbursements in respect thereof shall not at any time exceed $5,000,000 Indebtedness and (Bii) any disbursement in respect at the time of any issuance of such letter of credit shall be reimbursed in full within three Business Days Indebtedness, after such disbursement is made; and
(ix) other Funded Indebtedness if, on giving effect to the date of the creation, issuance, incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) as if such Indebtedness is Secured Funded Indebtedness, had been incurred on the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for last day of the most recent period of four recently completed fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such date.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness quarter of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, issue any preferred stock or other preferred Equity Interests (including any Disqualified Stockending prior to such date), except that (i) Holdings may issue preferred stock or other preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, is in pro forma compliance with the covenant set forth in Section 6.13.of the Borrower or any Restricted Subsidiary.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.the
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The ---------------------------------------- Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term Loans, other than any Incremental Term Loans, and Letters of CreditIndebtedness created under the Loan Documents;
(ii) Indebtedness created under the New Term Loan Credit Agreement;
(iii) the New Senior Subordinated Notes;
(iv) Indebtedness existing on the Restatement Effective Date date hereof and set forth in Schedule 6.01 and 6.01, but not any extensions, renewals, refinancings and renewals or replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than by the amount of any fees or expenses incurred in the refinancing thereof) or result in an earlier maturity date or decreased weighted average life thereofIndebtedness;
(iiiv) Indebtedness of the Borrower to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings or any other Restricted Subsidiary, in each case subject to Section 6.04;
(iv) Guarantees by the Borrower and by any Restricted Subsidiary of Indebtedness of Holdings, the Borrower or any other Subsidiary, provided that such Guarantees are permitted by -------- Indebtedness of the Borrower or any Subsidiary Loan Party to any Subsidiary that is not a Loan Party shall be subject to the limitation set forth in Section 6.046.04(d);
(vvi) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, provided that Guarantees by the Borrower or any Subsidiary Loan -------- Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 6.04(d);
(vii) Indebtedness of the Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vi) 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 (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof or result in an earlier maturity date or decreased weighted average life thereof; , provided that (A) such -------- Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, (B) the aggregate principal amount of Indebtedness permitted by this clause (vivii) shall not exceed $25,000,000 at any time outstandingoutstanding and (C) the aggregate principal amount of Indebtedness permitted by this clause (vii) incurred during any fiscal year of the Borrower shall not exceed $10,000,000;
(viiviii) Indebtedness of the China JV incurred in connection with interest rate protection agreements required by Section 5.14;
(ix) Indebtedness in an aggregate principal amount not exceeding $3,000,000 at any time outstanding incurred in connection with insurance premium financings;
(x) Indebtedness of the Borrower or any Subsidiary represented by surety or performance bonds or banker's acceptances in an aggregate amount not to exceed $20,000,000 5,000,000 at any time outstanding; provided that such Indebtedness is (A) secured only by assets of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;and
(viiixi) other unsecured reimbursement obligations (contingent or otherwise) Indebtedness in respect of letters of credit issued to support obligations of the Borrower or any Restricted Subsidiary incurred in the ordinary course of business; provided that (A) the an aggregate principal amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not exceeding $10,000,000 at any time exceed $5,000,000 and (B) any disbursement in respect of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement is made; and
(ix) other Funded Indebtedness ifoutstanding, on provided that the date of the creation, issuance, incurrence or assumption -------- aggregate principal amount of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered Subsidiaries permitted pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such date.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under this clause (a)(iiixi) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock), except that (i) Holdings may issue preferred stock or other preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdings, the Borrower or Loan Parties shall not exceed $2,500,000 at any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted Subsidiarytime outstanding.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Borrower ---------------------------------------- will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term Loans, other than any Incremental Term Loans, and Letters of CreditIndebtedness created under the Loan Documents;
(ii) Indebtedness existing on or committed to as the Restatement Effective Date date hereof and set forth in Schedule 6.01 6.01, the indebtedness of Tokyo Internet Corporation to be assumed by the Borrower in connection with the acquisition of all the capital stock of Tokyo Internet Corporation to be completed after the Effective Date and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than by the amount of any fees or expenses incurred in the refinancing thereof) or result in an earlier maturity date or decreased weighted average life thereof;
(iii) Indebtedness of the Borrower to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings Borrower or any other Restricted Subsidiary, in each case ; provided that -------- Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary Loan Party shall be subject to Section 6.046.05;
(iv) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Restricted Subsidiary of Indebtedness of Holdings, the Borrower or any other Subsidiary, ; provided that such Guarantees are permitted by the Borrower or any Subsidiary Loan Party of -------- Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 6.046.05;
(v) Indebtedness of the Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vi) Indebtedness of the Borrower or any Restricted Subsidiary incurred to finance the design, development, acquisition, construction or improvement of any fixed real or capital assetspersonal property, including tangible or intangible, used or to be used in connection with a Telecommunications Business, including, without limitation, Capital Lease Obligations (provided that Obligations, Purchase Money Obligations, installments sales, mortgage financings, master lease arrangements or similar such Indebtedness is incurred prior to agreements or within 180 days after such acquisition or the completion of such construction or improvement) arrangements, and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings renewals and replacements of any such assumed Indebtedness that do not increase the outstanding principal amount thereof or result in an earlier maturity date or decreased weighted average life thereof; provided that (A) such Indebtedness is -------- incurred prior to or within 90 days (or, in the case of Capital Lease Obligations, 180 days) after such acquisition or the completion of such construction or improvement and (B) the aggregate principal amount of Indebtedness permitted by this clause (viv) shall not exceed $25,000,000 350,000,000 at any time outstanding;
(vii) Indebtedness of the China JV in an aggregate principal amount not to exceed $20,000,000 at any time outstanding; provided that such Indebtedness is (A) secured only by assets of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
(viii) unsecured reimbursement obligations (contingent or otherwise) in respect of letters of credit issued to support obligations of the Borrower or any Restricted Subsidiary incurred in the ordinary course of business; provided that (A) the aggregate amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not at any time exceed $5,000,000 and (B) any disbursement in respect of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement is made; and
(ix) other Funded Indebtedness if, on the date of the creation, issuance, incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such date.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock), except that (i) Holdings may issue preferred stock or other preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted Subsidiary.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.
Appears in 1 contract
Samples: Credit Agreement (Psinet Inc)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term LoansIndebtedness created under the Loan Documents (subject, other than any Incremental Term Loansin the case of Credit Increases, and Letters to paragraph (d) of Creditthis Section);
(ii) Indebtedness (other than the Existing Subordinated Debt) existing on the Restatement Effective Date and set forth in Schedule 6.01 and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than by the amount of any fees or expenses incurred in the refinancing thereof) or result in an earlier maturity date or decreased weighted average life thereof;
(iii) Indebtedness of the Borrower to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings Borrower or any other Restricted Subsidiary, in each case subject to Section 6.04;
(iv) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Restricted Subsidiary of Indebtedness of Holdings, the Borrower or any other Subsidiary, ; provided that such (A) Guarantees are permitted by Section 6.04;
(v) Indebtedness of the Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect of any Subsidiary that is not a Loan Party shall be subject to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrenceSection 6.04 and (B) a Restricted Subsidiary that is not a Loan Party shall not Guarantee any Indebtedness of any Loan Party;
(viv) 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 (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof; provided that (A) such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement and (B) the aggregate principal amount of Indebtedness permitted by this clause (viv) at any time outstanding shall not exceed $20,000,000;
(vi) Indebtedness of any Person that becomes a Restricted Subsidiary after the Effective Date and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof; provided that such Indebtedness exists at the time such Person becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary;
(vii) the Existing Subordinated Debt and any Permitted Refinancing Indebtedness incurred to refinance any Existing Subordinated Debt;
(viii) subject to paragraph (d) of this Section, Permitted Additional Debt;
(ix) Indebtedness in respect of earn-outs relating to Permitted Acquisitions that are based on the income of the assets acquired in such Permitted Acquisition after the consummation thereof;
(x) Indebtedness to the seller in respect of any Permitted Acquisition; provided such Indebtedness is subordinated to the Obligations on terms no less favorable to the Lenders than the Existing Subordinated Debt;
(xi) Indebtedness secured by Liens permitted under Section 6.02(a)(iv); and
(xii) other unsecured Indebtedness in an aggregate principal amount not exceeding $25,000,000 at any time outstanding;
(vii) Indebtedness of the China JV in an aggregate principal amount not to exceed $20,000,000 at any time outstanding; provided that such Indebtedness is (A) secured only by assets of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
(viii) unsecured reimbursement obligations (contingent or otherwise) in respect of letters of credit issued to support obligations of the Borrower or any Restricted Subsidiary incurred in the ordinary course of business; provided that (A) the aggregate amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not at any time exceed $5,000,000 and (B) any disbursement in respect of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement is made; and
(ix) other Funded Indebtedness if, on the date of the creation, issuance, incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such date.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, Documents and (ii) Indebtedness permitted under clause subject to paragraph (a)(iiid) of this Section 6.01 and (iii) Guarantees permitted by Section, Permitted Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted herebyDebt.
(c) Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, (i) issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock), except that other than (iA) Holdings may issue preferred stock or other preferred Equity Interests of issued by Holdings that are is not Disqualified Stock and Disqualified Stock if such issuance would be permitted or (B) preferred stock that is issued by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted Subsidiary.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement not Disqualified Stock) or (ii) designate any other Indebtedness as “Designated Senior Indebtedness” under and as defined in the Permitted Debt Documents with respect to the Existing Subordinated Debt or any analogous definition in the Permitted Debt Documents for any other Subordinated Debt.
(d) Notwithstanding the foregoing, (i) the principal amount of Credit Increases plus the outstanding principal amount of Permitted Additional Debt and Permitted Holdings Debt shall not exceed, in the aggregate, $450,000,000 at any time, (ii) the aggregate principal amount of Permitted Senior Unsecured Debt shall not exceed $250,000,000 outstanding at any time and (iii) the aggregate principal amount of Permitted Holdings Debt that is pledged as Collateralnot Permitted Holdings PIK Debt shall not exceed $150,000,000 outstanding at any time.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Borrower will notNone of Parent, and Intermediate Holdings, Holdings and or the Borrower will, nor will not Parent permit any Restricted other Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term Loans, other than any Incremental Term Loans, and Indebtedness created under the Loan Documents (including Existing Letters of Credit);
(ii) (A) the Second-Lien Notes in an aggregate principal amount not exceeding $300,000,000, (B) other Indebtedness existing on the Restatement Effective Date and set forth in Schedule 6.01 and (C) extensions, renewals, refinancings renewals and replacements of the Second-Lien Notes or such other Indebtedness, provided that such extending, renewal or replacement Indebtedness (1) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced, (2) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium payable by the terms of such Indebtedness thereon and reasonable fees and expenses associated therewith), (3) shall not have a maturity date that do not increase is earlier than the outstanding principal amount thereof (other than by date that is 91 days after the amount latest maturity date of any fees Commitment or expenses incurred in the refinancing thereofLoan, (4) or result in an earlier maturity date or decreased shall have a weighted average life thereofthat is longer than the weighted average life of each Class of the then-remaining Term Loans, (5) shall be subordinated to the Obligations on the same terms as the Indebtedness being extended, renewed or replaced and (6) shall contain terms (including covenants, events of default, remedies, redemption provisions and change of control provisions) that are market terms on the date of issuance, provided that such covenants and events of default, taken as a whole, are not materially more restrictive than the covenants and defaults contained in this Agreement and the other Loan Documents and do not require the maintenance or achievement of any financial performance standards other than as a condition to the taking of specified actions (unless (x) except as provided in the immediately succeeding subclause (y), such financial performance standards (and the associated definitions, to the extent used in determining or calculating such financial performance standards) are identical in all respects to the financial performance standards set forth in this Agreement and (y) the levels for each such financial performance standard are increased (or, in the case of the Interest Coverage Ratio, reduced) by 0.75 above (or, in the case of the Interest Coverage Ratio, below) the corresponding levels for the financial performance standards set forth in this Agreement);
(iii) Indebtedness of the Borrower to Holdings Parent or any Restricted Subsidiary and of Parent or any Restricted Subsidiary to Parent, the Borrower, Holdings Borrower or any other Restricted Subsidiary, in each case provided (A) that Indebtedness of any Subsidiary that is not a Loan Party to Parent, the Borrower or any Subsidiary Loan Party shall be subject to Section 6.046.04 and (B) Indebtedness of the Borrower to Parent or any Subsidiary and Indebtedness of Parent or any Subsidiary Loan Party to any Subsidiary that is not a Subsidiary Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent;
(iv) Guarantees by the Borrower of Indebtedness of Parent or any Subsidiary and by Parent or any Restricted Subsidiary of Indebtedness of HoldingsParent, the Borrower or any other Subsidiary, provided that such Guarantees are (A) the Indebtedness so Guaranteed is permitted by this Section 6.04;
(vother than clause (a)(vi)), (B) Indebtedness of Guarantees by Parent, the Borrower or any Restricted Subsidiary in respect Loan Party of workers’ compensation claimsIndebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 6.04, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or (C) other financial guarantees provided by the Borrower and the Restricted Subsidiaries than in the ordinary course case of their businessGuarantees of the Second-Lien Notes and any Additional Second-Lien Debt, provided Guarantees permitted under this clause (iv) shall be subordinated to the Obligations of the applicable Loan Party to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (D) none of the Second-Lien Notes (or any extension, renewal or replacement thereof), Additional Second-Lien Debt (or any extension, renewal or replacement thereof) or Subordinated Debt shall be Guaranteed by any Subsidiary, unless such Subsidiary is a Loan Party that upon has Guaranteed the incurrence of Indebtedness with respect Obligations pursuant to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrencethe Collateral Agreement;
(viA) Indebtedness of Parent, the Borrower or any Restricted Subsidiary incurred to finance the acquisition, construction development, construction, restoration, replacement, rebuilding, maintenance, upgrade or improvement of any fixed or capital assets, including Capital Lease Obligations, Synthetic Lease Obligations (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed by Parent, 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, provided that such Indebtedness is incurred prior to or within 120 days after such acquisition or the completion of such development, construction, restoration, replacement, rebuilding, maintenance, upgrade or improvement, and (B) extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase so long as the outstanding principal amount thereof; of such extensions, renewals and replacements does not exceed the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and premium payable by the terms of such Indebtedness thereon and reasonable fees and expenses associated therewith), provided that the aggregate principal amount of Indebtedness permitted by this clause (v) shall not exceed $10,000,000 at any time outstanding;
(vi) Indebtedness of any Person that becomes a Subsidiary after the Effective Date, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals and replacements does not exceed the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium payable by the terms of such Indebtedness thereon and reasonable fees and expenses associated therewith), provided that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $25,000,000 at any time outstanding;
(vii) other unsecured Indebtedness of Parent, the Borrower or any Subsidiary in an aggregate principal amount not exceeding $20,000,000 at any time outstanding, provided that the aggregate principal amount of Indebtedness of the China JV Subsidiaries that are not Subsidiary Loan Parties permitted by this clause (vii) shall not exceed $1,000,000 at any time outstanding;
(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 Parent, the Borrower or any Subsidiary in respect of performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees and similar obligations (other than in respect of other Indebtedness), in each case provided in the ordinary course of business;
(x) Indebtedness in respect of Swap Agreements permitted by Section 6.07;
(xi) (A) Subordinated Debt; provided that (1) no Event of Default has occurred and is continuing or would result therefrom and (2) Parent is in compliance on a Pro Forma Basis after giving effect to the incurrence of such Subordinated Debt with the covenants contained in Sections 6.12, 6.13 and 6.14 recomputed as of the last day (or, with respect to Sections 6.13 and 6.14, as of the date that is 10 Business Days after the last day) of the most recently ended fiscal quarter of Parent prior to the issuance of such Subordinated Debt and has delivered to the Administrative Agent a certificate of its Financial Officer to such effect, together with all relevant financial information reasonably requested by the Administrative Agent, including reasonably detailed calculations demonstrating compliance with this clause (2) (which calculations shall, if made as of the last day of any fiscal quarter of Parent for which Parent has not delivered to the Administrative Agent the financial statements and certificate of its Financial Officer required to be delivered by Section 5.01(a) or (b) and Section 5.01(c), respectively, be accompanied by a reasonably detailed calculation of Consolidated EBITDA and Consolidated Cash Interest Expense for the relevant period) and (B) Subordinated Refinancing Indebtedness in respect of Subordinated Debt issued pursuant to clause (A) above or this clause (B);
(xii) Indebtedness of Foreign Subsidiaries that are not Loan Parties consisting of working capital revolving credit facilities in an aggregate amount not exceeding $5,000,000 at any time outstanding;
(xiii) Indebtedness in respect of netting services or overdraft protection or in connection with deposit accounts or securities accounts maintained with financial institutions or from any arrangement relating to the provision of treasury, depositary or cash management services or automated clearinghouse transfers of funds, in each case incurred in the ordinary course of business;
(xiv) Indebtedness consisting of the financing of insurance premiums in the ordinary course of business;
(xv) Indebtedness arising from agreements of Parent, the Borrower or any Subsidiary providing for indemnification, adjustment of purchase price or similar obligations, in each case incurred or assumed in connection with the acquisition of any business or assets permitted under this Agreement;
(xvi) Indebtedness of Parent, the Borrower or any Subsidiary to the seller of any business or assets permitted to be acquired by the Borrower and the Subsidiaries under this Agreement constituting a portion of the purchase price therefor in an aggregate amount not exceeding $25,000,000 at any time outstanding, and extensions, renewals and replacements of any such Indebtedness so long as the principal amount of such extensions, renewals or replacements does not exceed the principal amount of the Indebtedness being extended, renewed or replaced (plus any accrued but unpaid interest and redemption premium payable by the terms of such Indebtedness thereon and reasonable fees and expenses associated therewith);
(xvii) Indebtedness consisting of reimbursement obligations in respect of letters of credit (other than Letters of Credit issued pursuant to Section 2.05) issued for the account of Parent, the Borrower or any Subsidiary and having an aggregate face amount at any time outstanding not in excess of $3,000,000; and
(A) Additional Second-Lien Debt in an aggregate principal amount not to exceed $20,000,000 at any time outstanding; provided 100,000,000 that such Indebtedness is (A) secured only by assets issued for cash payable on the date of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower issuance thereof or any other Restricted Subsidiary;
(viii) unsecured reimbursement obligations (contingent or otherwise) in respect of letters of credit issued to support obligations of the Borrower or any Restricted Subsidiary incurred in the ordinary course of businessas consideration for a Permitted Acquisition; provided that (A1) if such Additional Second-Lien Debt is issued for cash, the aggregate amount Net Proceeds of all such letters of credit and unreimbursed disbursements in respect thereof shall not at any time exceed $5,000,000 and (B) any disbursement in respect of any such letter of credit shall be reimbursed in full within three Business Days Additional Second-Lien Debt are used, promptly after such disbursement is made; and
(ix) other Funded Indebtedness if, on Net Proceeds are received by the date of the creation, issuance, incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral)Borrower, (x) the Leverage Ratio is less than 4.00 to 1.00 and consummate one or more Permitted Acquisitions or (y) if to prepay Term Loans pursuant to Section 2.11(a), (2) no Event of Default has occurred and is continuing or would result therefrom and (3) Parent is in compliance on a Pro Forma Basis after giving effect to the incurrence of such Indebtedness Additional Second-Lien Debt with the covenants contained in Sections 6.12, 6.13 and 6.14 recomputed as of the last day (or, with respect to Sections 6.13 and 6.14, as of the date that is Secured Funded Indebtedness, 10 Business Days after the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for last day) of the most recent period recently ended fiscal quarter of four Parent prior to the issuance of such Additional Second-Lien Debt and has delivered to the Administrative Agent a certificate of its Financial Officer to such effect, together with all relevant financial information reasonably requested by the Administrative Agent, including reasonably detailed calculations demonstrating compliance with this clause (3) (which calculations shall, if made as of the last day of any fiscal quarters quarter of Parent for which Parent has not delivered to the Administrative Agent the financial statements have been and certificate of its Financial Officer required to be delivered pursuant to by Section 5.01(a) or (b) and Section 5.01(c), as applicablerespectively, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicableaccompanied by a reasonably detailed calculation of Consolidated EBITDA and Consolidated Cash Interest Expense for the relevant period) and all Indebtedness (B) extensions, renewals and replacements of the Additional Second-Lien Debt that satisfy the requirements set forth in clauses (1) through (6) of the first proviso to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such dateSection 6.01(a)(ii).
(b) None of Parent, Intermediate Holdings, Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower will, nor will they Parent permit any Restricted other Subsidiary to, issue any preferred stock or other preferred Disqualified Equity Interests (including any Disqualified Stock), except that (i) Holdings may issue preferred stock or other preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted SubsidiaryInterests.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Parent Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term Loans, other than any Incremental Term Loans, and Letters of CreditIndebtedness created under the Loan Documents;
(ii) Indebtedness existing on the Restatement Effective Date date hereof and set forth in Schedule 6.01 and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than by the amount of any fees or expenses incurred in the refinancing thereof) or result in an earlier maturity date or decreased weighted average life thereof;
(iii) Indebtedness of the Parent Borrower to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings Parent Borrower or any other Restricted Subsidiary, in each case ; provided that Indebtedness of any Subsidiary that is not a Subsidiary Loan Party to the Parent Borrower or any Subsidiary Loan Party shall be subject to Section 6.04;
(iv) Guarantees by the Parent Borrower of Indebtedness of any Subsidiary and by any Restricted Subsidiary of Indebtedness of Holdings, the Parent Borrower or any other Subsidiary, ; provided that such Guarantees are permitted by the Parent Borrower or any Subsidiary Loan Party of Indebtedness of any Subsidiary that is not a Subsidiary Loan Party shall be subject to Section 6.04;
(v) Indebtedness of the Parent Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vi) Indebtedness of the Borrower or any Restricted Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assetsassets in the ordinary course of business, including Capital Lease Obligations (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof or result in an earlier maturity date or decreased weighted average life thereof; provided that (A) such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement and (B) the aggregate principal amount of Indebtedness permitted by this clause (viv) shall not exceed $US$25,000,000 at any time outstanding;
(vi) Indebtedness of the Parent Borrower or any Subsidiary consisting of loans made, issued or Guaranteed by a Governmental Authority of the United States, Canada, Puerto Rico, the United Kingdom, Germany, Italy, France, Switzerland, Singapore or any other country reasonably approved by the US Agent in an aggregate principal amount not to exceed US$25,000,000 at any time outstanding;
(vii) Indebtedness under the Senior Notes Documents in an aggregate principal amount outstanding not to exceed, initially, US$280,000,000 (reduced by the amount of any such Indebtedness repaid or otherwise discharged, including pursuant to a Permitted Refinancing) and Notes Refinancing Indebtedness;
(viii) Indebtedness of a Loan Party incurred to a customer of such Loan Party to finance the acquisition by such Loan Party of any equipment (“Customer Requested Equipment”) necessary to perform services for such customer where the terms of such Indebtedness are consistent with those entered into with respect to similar Indebtedness prior to the Effective Date, including that (1) the repayment of such Indebtedness is conditional upon such customer ordering a specific volume of goods from such Loan Party and (2) such Indebtedness does not bear interest or provide for scheduled amortization or maturity; provided that (A) the Parent Borrower has provided prior written notice to the US Agent of the China JV incurrence of such Indebtedness, and (B) if the agreement evidencing such Indebtedness does not prohibit the counterparty to such agreement from setting off against or otherwise deducting from any amount owing by such counterparty to such Loan Party under any Account the amount of any such Indebtedness, an amount equal to the amount of such Indebtedness shall be deducted from the applicable Borrowing Base or Borrowing Bases;
(ix) Indebtedness of any Person that becomes a Subsidiary after the date hereof; provided that (A) such Indebtedness exists at the time such Person becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary and (B) the aggregate principal amount of Indebtedness permitted by this clause (ix) shall not exceed US$10,000,000 at any time outstanding;
(x) other unsecured Indebtedness in an aggregate principal amount not to exceed $20,000,000 exceeding US$25,000,000 at any time outstanding; provided that such the aggregate principal amount of Indebtedness is (A) secured only by assets of the China JV and Subsidiaries that are not Loan Parties permitted by assets of Holdings, the Borrower of this clause shall not exceed US$10,000,000 at any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;time outstanding; and
(viiixi) unsecured reimbursement obligations (contingent or otherwise) in respect of letters of credit issued to support obligations of the Borrower or any Restricted Subsidiary incurred in the ordinary course of businessother Indebtedness for borrowed money; provided that (A) such Indebtedness shall mature no earlier than, and shall not require any scheduled payments of principal prior to, the date that is 90 days after the Maturity Date (except that up to US$15,000,000 aggregate principal amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not at any time exceed $5,000,000 and unsecured Indebtedness may be incurred without compliance with this clause (A)), (B) any disbursement in respect at the time of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement is made; and
(ix) other Funded Indebtedness if, on the date of the creation, issuance, incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to the incurrence of such Funded Indebtedness, (1) no Default has occurred and is continuing, (2) clause (a) of the Coverage Ratio Condition is satisfied and (3) no more than US$25,000,000 aggregate principal amount of Indebtedness incurred under this clause (xi) by Subsidiaries that are not Subsidiary Loan Parties shall be outstanding, and (C) the Parent Borrower shall deliver to the US Agent, at least two Business Days prior to the incurrence of such Indebtedness, a certificate signed by a Financial Officer (1) describing the Indebtedness to be createdincurred and the anticipated date of incurrence thereof, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable2) certifying that the conditions set forth in clause (B) above are satisfied and all Indebtedness to be prepaid with (3) setting forth reasonably detailed calculations demonstrating satisfaction of clause (a) of the proceeds of such Funded Indebtedness on or within 10 days after such dateCoverage Ratio Condition.
(b) Holdings The Parent Borrower will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower willnot, nor will they it permit any Restricted Subsidiary to, issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock)Interests, except that other than (i) Holdings may issue Qualified Preferred Stock issued by the Parent Borrower, (ii) preferred stock or other preferred Preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted Subsidiary.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed issued to the Parent Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateralor (iii) the JLL Preferred Equity.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term Loans, other than any Incremental Term Loans, and Letters of CreditIndebtedness created under the Loan Documents;
(ii) Indebtedness existing on the Restatement Effective Date and set forth in Schedule 6.01 and extensions, renewals, refinancings and replacements of any such Indebtedness Subordinated Notes; PROVIDED that do not increase the outstanding aggregate principal amount thereof for all Indebtedness permitted by this clause (other than by the amount of ii) and outstanding at any fees or expenses incurred in the refinancing thereof) or result in an earlier maturity date or decreased weighted average life thereoftime shall not exceed $150,000,000;
(iii) Indebtedness of existing on the Borrower to Holdings date hereof and set forth in Schedule 6.01, but not any extensions, renewals or any Restricted Subsidiary and replacements of any Restricted Subsidiary to the Borrower, Holdings or any other Restricted Subsidiary, in each case subject to Section 6.04such Indebtedness;
(iv) Guarantees by Indebtedness of the Borrower to any Subsidiary and by of any Restricted Subsidiary of Indebtedness of Holdings, to the Borrower or any other Subsidiary; PROVIDED that Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary Loan Party shall be subject to Sections 6.05(d)(ii), provided that such Guarantees are permitted by Section 6.04(e) and (f);
(v) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided Subsidiary; PROVIDED that Guarantees by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence or any Subsidiary Loan Party of Indebtedness with respect of any Subsidiary that is not a Loan Party shall be subject to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrenceSection 6.05;
(vi) 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 (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof or result in an earlier maturity date or decreased weighted average life thereof; provided PROVIDED that (a) such Indebtedness is incurred prior to or within 90 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 exceed $25,000,000 10,000,000 at any time outstanding;
(vii) Indebtedness of any Person that becomes a Subsidiary after the China JV date hereof; PROVIDED that (a) such Indebtedness exists at the time such Person becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary and (b) the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $5,000,000 at any time outstanding;
(viii) Permitted Seller Notes in an aggregate principal amount outstanding at any time not to exceed $20,000,000 at any time outstanding; provided that such Indebtedness is (A) secured only by assets of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
(viii) unsecured reimbursement obligations (contingent or otherwise) in respect of letters of credit issued to support obligations of the Borrower or any Restricted Subsidiary incurred in the ordinary course of business; provided that (A) the aggregate amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not at any time exceed $5,000,000 and (B) any disbursement in respect of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement is made65,000,000; and
(ix) other Funded unsecured Indebtedness if, on in an aggregate principal amount not exceeding $15,000,000 at any time outstanding; PROVIDED that the date aggregate principal amount of Indebtedness of the Borrower's Subsidiaries permitted by this clause (ix) shall not exceed $5,000,000 at any time outstanding. Notwithstanding the foregoing, the Borrower will not, and will not permit any Subsidiary to, create, incur or assume any Indebtedness at any time, unless such creation, issuance, incurrence or assumption of is expressly permitted under the Subordinated Note Documents at such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such datetime.
(b) Holdings The Borrower will not, and will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock), except that other than (i) Holdings may issue preferred stock or other preferred Equity Interests of Holdings that are not Disqualified the Preferred Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdings, junior preferred stock; provided that the Borrower terms of such junior preferred stock shall have been approved by the Required Lenders or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to shall be held by a Person other than Holdings, the Borrower or any Restricted Subsidiary.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed no more adverse to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement the Lenders than the Preferred Stock and is pledged as Collateralshall be substantially similar to the non-voting common stock of the Borrower, except with respect to liquidation rights.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The ---------------------------------------- Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term Loans, other than any Incremental Term Loans, and Letters of CreditIndebtedness created under the Loan Documents;
(ii) Indebtedness created under the New Revolving Credit Agreement;
(iii) the New Senior Subordinated Notes;
(iv) Indebtedness existing on the Restatement Effective Date date hereof and set forth in Schedule 6.01 and 6.01, but not any extensions, renewals, refinancings and renewals or replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than by the amount of any fees or expenses incurred in the refinancing thereof) or result in an earlier maturity date or decreased weighted average life thereofIndebtedness;
(iiiv) Indebtedness of the Borrower to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings or any other Restricted Subsidiary, in each case subject to Section 6.04;
(iv) Guarantees by the Borrower and by any Restricted Subsidiary of Indebtedness of Holdings, the Borrower or any other Subsidiary, provided that such Guarantees are permitted by -------- Indebtedness of the Borrower or any Subsidiary Loan Party to any Subsidiary that is not a Loan Party shall be subject to the limitation set forth in Section 6.046.04(d);
(vvi) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, provided that Guarantees by the Borrower or any Subsidiary Loan -------- Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 6.04(d);
(vii) Indebtedness of the Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vi) 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 (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof or result in an earlier maturity date or decreased weighted average life thereof; , provided that (A) such -------- Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, (B) the aggregate principal amount of Indebtedness permitted by this clause (vivii) shall not exceed $25,000,000 at any time outstandingoutstanding and (C) the aggregate principal amount of Indebtedness permitted by this clause (vii) incurred during any fiscal year of the Borrower shall not exceed $10,000,000;
(viiviii) Indebtedness of the China JV incurred in connection with interest rate protection agreements required by Section 5.14;
(ix) Indebtedness in an aggregate principal amount not exceeding $3,000,000 at any time outstanding incurred in connection with insurance premium financings;
(x) Indebtedness of the Borrower or any Subsidiary represented by surety or performance bonds or banker's acceptances in an aggregate amount not to exceed $20,000,000 5,000,000 at any time outstanding; provided that such Indebtedness is (A) secured only by assets of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;and
(viiixi) other unsecured reimbursement obligations (contingent or otherwise) Indebtedness in respect of letters of credit issued to support obligations of the Borrower or any Restricted Subsidiary incurred in the ordinary course of business; provided that (A) the an aggregate principal amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not exceeding $10,000,000 at any time exceed $5,000,000 and (B) any disbursement in respect of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement is made; and
(ix) other Funded Indebtedness ifoutstanding, on provided that the date of the creation, issuance, incurrence or assumption -------- aggregate principal amount of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered Subsidiaries permitted pursuant to Section 5.01(athis clause (xi) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such datethat are not Loan Parties shall not exceed $2,500,000 at any time outstanding.
(b) Holdings The Borrower will not, and will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock), except that (i) Holdings may issue preferred stock or other preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted SubsidiaryInterests.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Borrower Each of Parent and the Borrowers will not, and Holdings and the Borrower will not permit any Restricted Subsidiary of its subsidiaries to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term Loans, other than any Incremental Term Loans, and Letters of CreditIndebtedness created under the Loan Documents;
(ii) Indebtedness existing on the Restatement Effective Date date hereof and set forth in Schedule 6.01 and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than by the amount of any fees or expenses incurred in the refinancing thereof) or result in an earlier maturity date or decreased weighted average life thereof or change the parties directly or indirectly responsible for the payment thereof;
(iii) unsecured Indebtedness of the Parent, any Borrower to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings or any other Restricted Subsidiary to Parent, any Borrower or any other Subsidiary, in each case provided that (A) such Indebtedness shall not have been transferred or pledged to any third party, (B) such Indebtedness is subordinated to the Obligations on terms customary for intercompany subordinated Indebtedness and (C) Indebtedness of any Subsidiary that is not a Loan Party to Parent, any Borrower or any other Subsidiary Loan Party shall be subject to Section 6.04;
(iv) Guarantees by the Borrower and by any Restricted Subsidiary of Indebtedness of HoldingsParent, the any Borrower or any other Subsidiary, provided that such Guarantees are permitted by Section 6.04;
(v) Indebtedness of the Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vi) Indebtedness of the Borrower or any Restricted Subsidiary incurred to finance the acquisition, construction construction, development, enlargement, repair or improvement of any fixed or capital assets, including Capital Lease Obligations (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof or result in an earlier maturity date or decreased weighted average life thereof or change the parties directly or indirectly responsible for the payment thereof; , provided that (A) such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction, development, enlargement, repair or improvement and (B) the aggregate principal amount of Indebtedness permitted by this clause (viiv) shall not exceed $25,000,000 the US Dollar Equivalent of US$10,000,000 at any time outstanding;
(v) Indebtedness of any Person that becomes a Subsidiary after the date hereof and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof or result in an earlier maturity date or decreased weighted average life thereof or change the parties directly or indirectly responsible for the payment thereof, provided that (A) such Indebtedness exists at the time such Person becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary and (B) the aggregate principal amount of Indebtedness permitted by this clause (v) shall not exceed the US Dollar Equivalent of US$10,000,000 at any time outstanding;
(vi) Permitted Subordinated Indebtedness, provided that immediately before and after giving pro forma effect to the incurrence of such Permitted Subordinated Indebtedness, no Default shall have occurred and be continuing (including any Default under Section 6.13, 6.14, 6.15 or 6.16);
(vii) Indebtedness with respect to Swap Agreements that are permitted to be entered into under Section 6.07;
(viii) Indebtedness of the China JV Foreign Subsidiaries denominated in any currency (exclusive of Indebtedness incurred hereunder) in an aggregate principal amount not to exceed $20,000,000 exceeding the US Dollar Equivalent of US$75,000,000 at any time outstanding; provided that such Indebtedness is ;
(Aix) secured only advances and deposits received by assets of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
(viii) unsecured reimbursement obligations (contingent or otherwise) in respect of letters of credit issued to support obligations of the Borrower or any Restricted Subsidiary incurred in the ordinary course of business; provided that (A) the aggregate amount of all such letters of credit business and unreimbursed disbursements in respect thereof shall not at Guarantees by Parent, any time exceed $5,000,000 and (B) Borrower or any disbursement in respect of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement is madeother Subsidiary thereof; and
(ixx) other Funded Indebtedness ifof Parent, on any Borrower or any other Subsidiary not permitted by any other clause of this Section 6.01(a) in an aggregate principal amount not exceeding the date US Dollar Equivalent of US$50,000,000 at any time outstanding, provided that immediately before and after giving pro forma effect to the creation, issuance, incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0no Default shall have occurred and be continuing (including any Default under Section 6.13, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) 6.14, 6.15 or (b6.16), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such date.
(b) Holdings Parent will not, and will not permit any Holding Company to, create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created other than Guarantees under the Loan Security Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor None of Parent and the Borrower Borrowers will, nor will they permit any Restricted Subsidiary to, issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock)Interests, except that (i) Holdings may issue preferred stock or other preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted SubsidiaryPreferred Stock.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.
Appears in 1 contract
Samples: Credit Agreement (CCE Spinco, Inc.)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term Loans, other than any Incremental Term Loans, and Letters of CreditIndebtedness created under the Loan Documents;
(ii) the Subordinated Debt;
(iii) the Junior Subordinated Note;
(iv) Indebtedness existing on the Restatement Effective Date and set forth in Schedule 6.01 and extensions, renewals, refinancings and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than by the amount of any fees or expenses incurred in the refinancing thereof) or result in an earlier maturity date or decreased weighted average life thereof;
(iiiv) Indebtedness of the Borrower to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings or any other Restricted Subsidiary, in each case subject to Section 6.04;
(ivvi) Guarantees by the Borrower and by any Restricted Subsidiary of Indebtedness of Holdings, the Borrower or any other Subsidiary, provided that such Guarantees are permitted by the Borrower or any Subsidiary Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 6.04;
(vvii) Indebtedness of the Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vi) 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 (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof; , provided that the aggregate principal amount of Indebtedness permitted by this clause (vivii) shall not exceed $25,000,000 at any time outstanding;
(viiviii) Indebtedness of the China JV Borrower or any Subsidiary in respect of workers' compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion guarantees provided by the Borrower and the Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers' compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(ix) Indebtedness in respect of a Permitted Receivables Financing in an aggregate principal amount not to exceed $20,000,000 at any time outstanding; 100,000,000, provided that the Net Proceeds resulting from the sale, transfer or other disposition of Receivables in connection with such Indebtedness is (A) secured only by assets of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted SubsidiaryPermitted Receivables Financing are applied in accordance with Section 2.11(c);
(viiix) unsecured reimbursement obligations (contingent or otherwise) in respect of letters of credit issued to support obligations Indebtedness of the Borrower or any Restricted Subsidiary incurred in the ordinary course of business; provided that was (A) Indebtedness of any other Person existing at the time such other Person was merged with or became a Subsidiary, including Indebtedness incurred in connection with, or in contemplation of, such other Person's merging with or becoming a Subsidiary, and extensions, renewals, refinancings and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof or result in an earlier maturity date or decreased weighted average life thereof, provided that the aggregate principal amount of all such letters of credit and unreimbursed disbursements in respect thereof Indebtedness permitted under this clause (x) shall not exceed $25,000,000 at any time outstanding;
(xi) other unsecured Indebtedness in an aggregate principal amount not exceeding $50,000,000 at any time outstanding, provided that the aggregate principal amount of Indebtedness of the Subsidiaries that are not Subsidiary Loan Parties permitted by this clause (xi) shall not exceed $5,000,000 and (B) 25,000,000 at any disbursement in respect of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement is made; and
(ix) other Funded Indebtedness if, on the date of the creation, issuance, incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such datetime outstanding.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) the Subordinated Debt and (iii) Indebtedness permitted under clause (a)(iiia)(v) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby6.01.
(c) Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock)Interests, except that (i) Holdings may issue the Cumulative Preferred Stock, (ii) Holdings may issue preferred stock or other preferred Equity Interests of Holdings that are do not Disqualified Stock require mandatory cash dividends or redemptions and Disqualified Stock if such issuance would be permitted by clause (a)(ix) do not provide for any right on the part of this Section 6.01 as if such clause applied the holder to Holdings require redemption, repurchase or repayment thereof, in each case prior to the date that is 91 days after August 4, 2007, and (iiiii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ ' qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted Subsidiary.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.
Appears in 1 contract
Samples: Credit Agreement (SCG Holding Corp)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term Loans, other than any Incremental Term Loans, and Letters of CreditIndebtedness created under the Loan Documents;
(ii) the Senior Notes in an aggregate principal amount not to exceed $150,000,000;
(iii) Indebtedness existing on the Restatement Effective Date date hereof and set forth in Schedule 6.01 and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than by in respect of the Existing Company Secured Debt), provided that such extending, renewal or replacement Indebtedness (A) shall not be Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or replaced, (B) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being extended, renewed or replaced (plus any fees or expenses incurred in the refinancing thereofaccrued but unpaid interest and redemption premium thereon), (C) or result in shall not have an earlier maturity date or decreased shorter weighted average life thereofthan the Indebtedness being extended, renewed or replaced, (D) shall be subordinated to the Obligations on the same terms as the Indebtedness being extended, renewed or replaced and (E) shall not have terms (including covenants, events of default, remedies, redemption provisions and sinking fund provisions, but excluding financial terms such as interest rates and redemption provisions) less favorable to the Lenders than the terms of the Indebtedness being extended, renewed or replaced;
(iiiiv) Indebtedness of the Borrower to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings Borrower or any other Restricted Subsidiary, in each case provided (A) that Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary Loan Party shall be subject to Section 6.046.04 and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary Loan Party to any Subsidiary that is not a Subsidiary Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent;
(ivv) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Restricted Subsidiary of Indebtedness of Holdings, the Borrower or any other Subsidiary, provided that such Guarantees are (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (a)(iii) or (a)(vii)), (B) Guarantees by the Borrower or any Subsidiary Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 6.04, (C) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of the applicable Subsidiary to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (D) none of the Senior Notes shall be Guaranteed by any Subsidiary, unless such Subsidiary is a Loan Party that has Guaranteed the Obligations pursuant to the Collateral Agreement;
(vA) Indebtedness of the Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vi) 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 (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) 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, provided that such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, and (B) extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof; thereof (plus any accrued but unpaid interest and premium thereon), provided that the aggregate principal amount of Indebtedness permitted by this clause (vi) shall not exceed $25,000,000 5,000,000 at any time outstanding;
(viiA) Indebtedness of any Person that becomes a Subsidiary after the China JV date hereof, provided that such Indebtedness exists at the time such Person becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary, and (B) extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (plus any accrued but unpaid interest and premium thereon), provided that the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not exceed $5,000,000 at any time outstanding;
(viii) other unsecured Indebtedness in an aggregate principal amount not to exceed exceeding $20,000,000 5,000,000 at any time outstanding; provided that such Indebtedness is (A) secured only by assets of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
(viiiix) unsecured reimbursement Indebtedness owed to any Person (including obligations (contingent or otherwise) in respect of letters of credit issued for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to support reimbursement or indemnification obligations of the Borrower or any Restricted Subsidiary to such Person, in each case incurred in the ordinary course of business; provided that ;
(Ax) Indebtedness of the aggregate amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not at Borrower or any time exceed $5,000,000 and (B) any disbursement Subsidiary in respect of any such letter performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees and similar obligations (other than in respect of credit shall be reimbursed other Indebtedness), in full within three Business Days after such disbursement is madeeach case provided in the ordinary course of business; and
(ixxi) other Funded Indebtedness if, on the date in respect of the creation, issuance, incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured Swap Agreements permitted by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such date6.07.
(b) Holdings The Borrower will not, and will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, issue any preferred stock or other preferred Disqualified Equity Interests (including any Disqualified Stock), except that (i) Holdings may issue preferred stock or other preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted SubsidiaryInterests.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.
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Indebtedness; Certain Equity Securities. (a) The Borrower will not, and Neither Intermediate Holdings and nor the Borrower will, nor will not they permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term Loans, other than any Incremental Term Loans, and Letters of CreditIndebtedness created under the Loan Documents;
(ii) the Senior Subordinated Notes;
(iii) Indebtedness existing on the Restatement Effective Date date hereof and set forth in Schedule 6.01 and extensions, renewals, refinancings renewals and replacements of any such Indebtedness, provided that such extending, renewal or replacement Indebtedness (A) shall not add guarantors, obligors or security from that do which applied to the Indebtedness being extended, renewed or replaced, (B) shall not increase the outstanding be in principal amount thereof (other than by that exceeds the principal amount of any fees the Indebtedness being extended, renewed or expenses incurred in the refinancing thereofreplaced (plus accrued interest and premium thereon), (C) or result in shall not have an earlier maturity date or a decreased weighted average life thereofthan the Indebtedness being extended, renewed or replaced and (D) shall be subordinated to the Obligations on the same terms (or, from the perspective of the Lenders, better terms), if any, as the Indebtedness being extended, renewed or replaced;
(iiiiv) Indebtedness of the Borrower to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings or any other Restricted Subsidiary, in each case subject to Section 6.04;
(iv) Guarantees by the Borrower and by any Restricted Subsidiary of Indebtedness of Holdings, the Borrower or any other Subsidiary, provided that such Guarantees are permitted by (A) Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary Loan Party shall be subject to Section 6.046.04 and (B) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any Subsidiary Loan Party to any Subsidiary that is not a Subsidiary Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent;
(v) Guarantees (A) by Intermediate Holdings of the Senior Subordinated Notes and the Additional Senior Subordinated Notes, (B) by the Borrower of Indebtedness of any Subsidiary and (C) by any Subsidiary of Indebtedness of the Borrower or any Restricted Subsidiary other Subsidiary, provided that, in respect of workers’ compensation claimseach case, self-insurance obligations(1) the Indebtedness so Guaranteed is permitted by this Section 6.01 (other than Section 6.01(a)(iii)), performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided (2) Guarantees by the Borrower or any Subsidiary Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 6.04, (3) Guarantees permitted under this clause (v) shall be subordinated to the Obligations of Intermediate Holdings, the Borrower or the applicable Subsidiary, as the case may be, on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations and (4) the Senior Subordinated Notes and the Restricted Subsidiaries in the ordinary course of their business, provided Additional Senior Subordinated Notes shall not be Guaranteed by any Subsidiary that upon the incurrence of Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrenceis not a Subsidiary Loan Party;
(vi) 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 (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) 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 extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (plus accrued interest and premium in respect thereof; ), provided that (A) such Indebtedness 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 exceed exceed, together with the Remaining Present Value of all leases permitted under Section 6.06, $25,000,000 at any time outstanding;
(viiA) Indebtedness of any Person that becomes a Subsidiary after the China JV date hereof, provided that (1) such Indebtedness exists at the time such Person becomes a Subsidiary and is not created in an contemplation of or in connection with such Person becoming a Subsidiary and (2) the aggregate principal amount of Indebtedness permitted by this clause (vii) shall not to exceed $20,000,000 at any time outstanding; provided that such Indebtedness is (A) secured only by assets of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary outstanding and (B) any refinancings, renewals and replacements of any such Indebtedness pursuant to the preceding clause (A) that do not Guaranteed by Holdings, increase the Borrower or any other Restricted Subsidiaryoutstanding principal amount thereof (plus accrued interest and premium in respect thereof);
(viii) unsecured Indebtedness owed to any person providing workers' compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations (contingent or otherwise) to such person, in respect of letters of credit issued to support obligations of the Borrower or any Restricted Subsidiary each case incurred in the ordinary course of business; ;
(A) Indebtedness of the Borrower or any Subsidiary in respect of performance bonds, bid bonds, appeal bonds, surety bonds, completion guarantees and similar obligations, in each case provided in the ordinary course of business and (B) any refinancings, renewals and replacements of any such Indebtedness pursuant to the preceding clause (A) that do not increase the outstanding principal amount thereof (plus accrued interest and premium in respect thereof);
(x) Indebtedness of any Loan Party pursuant to Swap Agreements permitted by Section 6.07;
(xi) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within two Business Days of its incurrence;
(xii) Additional Senior Subordinated Notes of the Borrower not permitted by Section 6.01(a)(xv) in an aggregate principal amount not exceeding $225,000,000 at any time outstanding, provided that (A) at no time may the sum of (x) aggregate principal amount of Additional Senior Subordinated Notes issued pursuant to this Section 6.01(a)(xii) and outstanding at such time and (y) the aggregate principal amount of all such letters Incremental Extensions of credit and unreimbursed disbursements in respect thereof shall not at any time Credit made pursuant to Section 2.20 exceed $5,000,000 and 350,000,000, (B) any disbursement in respect of immediately prior to and after giving effect to any such letter issuance of credit Additional Senior Subordinated Notes, on a Pro Forma Basis, as of the last day of the most recently ended fiscal quarter prior to such issuance and for which financial statements are available, (1) the Borrower shall be reimbursed in full within three Business Days after such disbursement is made; and
(ix) other Funded Indebtedness if, on compliance with the date of the creation, issuance, incurrence or assumption of such Indebtedness (or, covenants contained in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral)Sections 6.12 and 6.13, (x2) the Leverage Ratio is shall be less than 4.00 4.50 to 1.00 and (y3) if such Indebtedness is Secured Funded Indebtedness, the Secured Senior Leverage Ratio is shall be less than 2.5 3.00 to 1.0, in each case calculated based on Consolidated EBITDA for 1.00 and (C) the most recent period Net Proceeds of four fiscal quarters for which financial statements have been delivered pursuant such Additional Senior Subordinated Notes are used to finance all or any portion of any investment or expenditure permitted by Section 5.01(a) 6.04 (including all or (bany portion of any Permitted Acquisition permitted thereunder), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such date.
(b) Holdings will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness finance Capital Expenditures permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock), except that (i) Holdings may issue preferred stock or other preferred Equity Interests of Holdings that are not Disqualified Stock and Disqualified Stock if such issuance would be permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and (ii) Holdings, the Borrower or any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted Subsidiary.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Agreement and is pledged as Collateral.by
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Samples: Credit Agreement (Wix Filtration Media Specialists, Inc.)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Term Loans, other than any Incremental Term Loans, and Letters of CreditIndebtedness created under the Loan Documents;
(ii) the Subordinated Debt;
(iii) Indebtedness existing on the Restatement Effective Date and set forth in Schedule 6.01 and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not (A) increase the outstanding principal amount thereof thereof, or (other than by the amount of any fees or expenses incurred in the refinancing thereofB) or result in an earlier maturity date or decreased weighted average life thereof; provided that the Indebtedness of St. Xxxx Company, Ltd. reflected on Schedule 6.01 may be increased to a principal amount not to exceed $2,000,000 at any one time;
(iiiiv) Indebtedness of the Borrower to Holdings or any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower, Holdings Borrower or any other Restricted Subsidiary, in each case ; provided that Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any Subsidiary Loan Party shall be subject to Section 6.04;
(ivv) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Restricted Subsidiary of Indebtedness of Holdings, the Borrower or any other Subsidiary, ; provided that such Guarantees are (A) the Indebtedness so guaranteed is permitted by this Section 6.04;
and (vB) Indebtedness of Guarantees by the Borrower or any Restricted Subsidiary in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower and the Restricted Subsidiaries in the ordinary course of their business, provided that upon the incurrence Loan Party of Indebtedness with respect of any Subsidiary that is not a Loan Party shall be subject to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrenceSection 6.04;
(vi) 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 (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof or result in an earlier maturity date or decreased weighted average life thereof; provided that (A) such Indebtedness is incurred prior to or within 90 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 exceed $25,000,000 5,000,000 at any time outstanding;
(vii) unsecured Indebtedness incurred and secured or unsecured Indebtedness assumed, in each case in connection with, or resulting from, Permitted Acquisitions; provided that the aggregate principal amount of Indebtedness permitted by this clause (vii) shall be subject to the limitations of clause (h) of Section 6.04;
(viii) Indebtedness representing deferred compensation to employees of the Borrower or the Subsidiaries, provided that the aggregate principal amount of Indebtedness permitted by this clause (viii) shall not exceed $1,000,000 at any time outstanding;
(ix) other Indebtedness of the China JV Borrower incurred in connection with the repurchase by the Borrower of its outstanding capital stock in accordance with clause (iv) of Section 6.08 which by its terms is subordinated to the Obligations in a manner and to the extent reasonably acceptable to the Administrative Agent, in an aggregate principal amount not to exceed exceeding $20,000,000 500,000 at any time outstanding; provided that such Indebtedness is (A) secured only by assets of the China JV and not by assets of Holdings, the Borrower of any other Restricted Subsidiary and (B) not Guaranteed by Holdings, the Borrower or any other Restricted Subsidiary;
(viiix) unsecured reimbursement obligations (contingent or otherwise) in respect of letters of credit issued to support obligations of the Borrower or any Restricted Subsidiary incurred in the ordinary course of business; provided that (A) the aggregate amount of all such letters of credit and unreimbursed disbursements in respect thereof shall not at any time exceed $5,000,000 and (B) any disbursement in respect of any such letter of credit shall be reimbursed in full within three Business Days after such disbursement is made15¼% Senior Subordinated Notes; and
(ixxi) other Funded unsecured Indebtedness if, on the date of the creation, issuance, incurrence or assumption of such Indebtedness (or, in the case of Funded Indebtedness that becomes secured by collateral after the date such Indebtedness is created, issued, incurred or assumed, the date such Funded Indebtedness becomes secured by such collateral), (x) the Leverage Ratio is less than 4.00 to 1.00 and (y) if such Indebtedness is Secured Funded Indebtedness, the Secured Leverage Ratio is less than 2.5 to 1.0, in each case calculated based on Consolidated EBITDA for the most recent period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, determined after giving effect to such Funded Indebtedness to be created, issued, incurred or assumed on such date (or becoming so secured on such date, as applicable) and all Indebtedness to be prepaid with the proceeds of such Funded Indebtedness on or within 10 days after such datean aggregate principal amount not exceeding $5,000,000 at any time outstanding.
(b) Holdings The Borrower will not create, incur, assume or permit to exist any Indebtedness except (i) Indebtedness created under the Loan Documents, (ii) Indebtedness permitted under clause (a)(iii) of this Section 6.01 and (iii) Guarantees permitted by Holdings of Indebtedness of the Borrower and the Restricted Subsidiaries permitted hereby.
(c) Neither Holdings nor the Borrower willnot, nor will they it permit any Restricted Subsidiary to, issue any preferred stock or other preferred Equity Interests (including any Disqualified Stock), except Interests; provided that the Borrower may issue (i) Holdings may issue preferred stock or other preferred Equity Interests Xxxx Preferred Stock for the purpose of Holdings repurchasing Xxxx Common Stock as required by the provisions of the Stockholders’ Agreement, as in effect as of the Effective Date, to the extent that are not Disqualified Stock and Disqualified Stock if such issuance would be repurchase requirements exceed the payments permitted by clause (a)(ix) of this Section 6.01 as if such clause applied to Holdings and 6.08(a)(v), (ii) HoldingsPermitted Acquisition Preferred Stock, the Borrower or (iii) PIK Preferred Stock and (iv) any Restricted Subsidiary may issue directors’ qualifying shares or shares required by applicable law to be held by a Person other than Holdings, the Borrower or any Restricted Subsidiary.
(d) Neither Holdings nor the Borrower will permit the Bermuda IP Subsidiary to create, incur, assume or permit to exist any Indebtedness (regardless of whether permitted under paragraph (a) of this Section) other than Indebtedness of the Bermuda IP Subsidiary owed to the Borrower or a Subsidiary Loan Party preferred stock that is otherwise permitted by this Agreement and is pledged as Collateralnot Disqualified Stock.
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