Indebtedness; Certain Equity Securities. (a) The Borrower will not, and will not permit any other Loan Party to, create, incur, assume or permit to exist any Indebtedness, except: (i) Indebtedness created under the Loan Documents; (ii) Indebtedness existing on the date hereof and set forth in Schedule 6.01; (iii) Indebtedness of any Subsidiary of Borrower (other than a Foreign Subsidiary) to the Borrower or any other Subsidiary of Borrower (other than a Foreign Subsidiary) and Indebtedness of Borrower to any of its Subsidiaries (other than a Foreign Subsidiary) and Indebtedness of any Foreign Subsidiary of Borrower to any other Foreign Subsidiary of Borrower; Indebtedness of any Foreign Subsidiary of Borrower to the Borrower or any other Subsidiary of Borrower (other than a Foreign Subsidiary) in an aggregate amount not to exceed $5,000,000 in the aggregate at any one time outstanding and Indebtedness of Borrower to any of its Foreign Subsidiaries not to exceed $1,000,000 in the aggregate at any one time outstanding; (iv) Guarantees of Indebtedness permitted under this Section 6.01; (v) purchase money Indebtedness or Capital Lease Obligations in an aggregate amount not exceeding, at any one time outstanding, $5,000,000; (vi) “xxxx to market” exposure resulting from any Swap Agreement entered into in compliance with Section 6.07; (vii) Indebtedness under performance, stay, customs, appeal and surety bonds or with respect to workers’ compensation or other like employee benefit claims, in each case incurred in the ordinary course of business; (viii) Indebtedness in respect of customary netting services, overdraft protections and similar customary arrangements, in each case incurred in the ordinary course of business in connection with deposit accounts; (ix) Indebtedness of the type described in clause (e) of the definition of “Indebtedness” secured by the Liens permitted under Section 6.02; (x) other Indebtedness in an aggregate principal amount not exceeding, at any one time outstanding, an amount equal to fifteen percent (15%) of the net worth of the Borrower (on a consolidated basis) disclosed by the most recently delivered financial statements of the Borrower; and (xi) extensions, renewals and replacements of any of the foregoing that do not increase the outstanding principal amount thereof. (b) The Borrower will not, nor will it permit any other Loan Party to, issue any preferred stock or other preferred Equity Interests after the Effective Date.
Appears in 3 contracts
Samples: Credit Agreement (DXP Enterprises Inc), Credit Agreement (DXP Enterprises Inc), Credit Agreement (DXP Enterprises Inc)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and will not permit any other Loan Party Subsidiary to, create, incur, assume or permit to exist any IndebtednessIndebtedness or any Attributable Debt in respect of Sale and Leaseback Transactions, except:
(i) Indebtedness created under the Loan Documents;
(ii) the Subordinated Debt;
(iii) Indebtedness existing on the date hereof and and, in the case of Indebtedness owed to Persons other than the Borrower or Subsidiaries in a principal amount in excess of $1,000,000, set forth in on Schedule 6.01;
(iiiiv) unsecured Indebtedness of the Borrower, the Net Proceeds of which are used solely to prepay Term Loans and pay associated interest, costs and expenses within five Business Days of the receipt of the Net Proceeds of such unsecured Indebtedness;
(v) Indebtedness represented by Commercial Paper if such Indebtedness is permitted pursuant to Section 6.13;
(vi) Permitted Subordinated Indebtedness; provided that such Indebtedness is permitted pursuant to Section 6.13;
(vii) unsecured Indebtedness of the Borrower or any Subsidiaries in addition to the Indebtedness permitted above; provided that the aggregate principal amount of Indebtedness permitted by this clause shall not exceed $100,000,000 at any time outstanding;
(viii) Indebtedness of any Subsidiary of Borrower the Foreign Subsidiaries (other than Indebtedness owed to the Borrower or Domestic Subsidiaries) in an aggregate principal amount at any time outstanding not in excess of the greater of (i) $100,000,000 and (ii) an amount equal to 10% of the total assets of all Foreign Subsidiaries as of the end of the most recent fiscal quarter in respect of which financial statements have been delivered pursuant to Section 5.01 (calculated on a combined basis for such Foreign SubsidiarySubsidiaries in accordance with GAAP);
(ix) unsecured Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary Subsidiary; provided that (x) such Indebtedness owed by any Loan Party is subordinated to the Obligations in accordance with the provisions of Borrower an Affiliate Subordination Agreement substantially in the form of Exhibit J hereto and (other than a Foreign Subsidiaryy) and Indebtedness of Borrower to any of its Subsidiaries (other than a Foreign Subsidiary) and Indebtedness of any Foreign Subsidiary of Borrower to any other Foreign Subsidiary of Borrower; Indebtedness of any Foreign Subsidiary of Borrower that is not a Loan Party to the Borrower or any Subsidiary Loan Party shall be subject to Section 6.04;
(x) Indebtedness and Attributable Debt of the Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any franchise development rights or capital or other long-term assets, including Capital Lease Obligations, 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 (or prior to the acquisition of any Subsidiary holding such assets, provided that such Indebtedness or Attributable Debt was not incurred in contemplation thereof) and Attributable Debt in connection with Sale and Leaseback Transactions permitted by Section 6.06, provided that (x) such Indebtedness or Attributable Debt is incurred prior to or within 90 days after such acquisition or the completion of Borrower such construction or improvement, and (other than a Foreign Subsidiaryy) the amount of such Indebtedness or Attributable Debt does not exceed the cost of acquiring, constructing or improving such franchise development rights or assets, and (z) the aggregate principal amount of Indebtedness permitted by this clause (x) and Attributable Debt in an aggregate amount connection with Sale and Leaseback Transactions permitted by Section 6.06, together with any Refinancing Indebtedness in respect thereof permitted by clause (xi) below, shall not to exceed $5,000,000 in the aggregate 40,000,000 at any one time outstanding and Indebtedness of Borrower to any of its Foreign Subsidiaries not to exceed $1,000,000 in the aggregate at any one time outstanding;
(xi) Refinancing Indebtedness in respect of the Indebtedness provided by clauses (iii), (iv) Guarantees of Indebtedness permitted under this Section 6.01and (x);
(vxii) purchase money Guarantees by the Borrower or other Loan Parties of Indebtedness of Domestic Subsidiaries or, to the extent permitted by Section 6.04(c), Foreign Subsidiaries; and
(xiii) Guarantees by the Borrower of Indebtedness or Capital Lease Obligations Attributable Debt of Franchisees in an aggregate amount not exceeding, at any one time outstanding, outstanding not exceeding $5,000,000;
(vi) “xxxx 40,000,000 or such lesser amount as is permitted to market” exposure resulting from any Swap Agreement entered into in compliance with be outstanding pursuant to Section 6.07;
(vii) Indebtedness under performance, stay, customs, appeal and surety bonds or with respect to workers’ compensation or other like employee benefit claims, in each case incurred in the ordinary course of business;
(viii) Indebtedness in respect of customary netting services, overdraft protections and similar customary arrangements, in each case incurred in the ordinary course of business in connection with deposit accounts;
(ix) Indebtedness of the type described in clause (e) of the definition of “Indebtedness” secured by the Liens permitted under Section 6.02;
(x) other Indebtedness in an aggregate principal amount not exceeding, at any one time outstanding, an amount equal to fifteen percent (15%) of the net worth of the Borrower (on a consolidated basis) disclosed by the most recently delivered financial statements of the Borrower; and
(xi) extensions, renewals and replacements of any of the foregoing that do not increase the outstanding principal amount thereof6.04(c).
(b) The Borrower will not, nor will it not permit any other Loan Party to, Domestic Subsidiary or Significant Foreign Subsidiary to issue any preferred stock Equity Interests other than to the Borrower or other any Subsidiary Loan Party; provided that any such preferred Equity Interests after issued to the Effective DateBorrower or any Subsidiary Loan Party shall be pledged pursuant to the terms of the Collateral Agreement or, in the case of Equity Interests of Significant Foreign Subsidiaries, a Foreign Pledge Agreement.
Appears in 2 contracts
Samples: Credit Agreement (Blockbuster Inc), Credit Agreement (Blockbuster Inc)
Indebtedness; Certain Equity Securities. (a) The ---------------------------------------- Holdings and the Borrower will not, and will not permit any other Loan Party Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) Indebtedness existing the Subordinated Debt issued on terms reasonably satisfactory to the date hereof and set forth Lenders in Schedule 6.01an aggregate principal amount not to exceed $150,000,000; provided that the proceeds of the Subordinated Debt shall be used by the -------- Borrower solely to fund the build-out of the Network;
(iii) Indebtedness of the Borrower to any Subsidiary of Borrower (other than a Foreign any Special Purpose Subsidiary) and of any Subsidiary (other than any Special Purpose Subsidiary) to the Borrower or any other Subsidiary of Borrower (other than any Special Purpose Subsidiary); provided that Indebtedness of any Subsidiary -------- that is not a Foreign Loan Party to the Borrower or any Subsidiary Loan Party shall be subject to Section 6.05;
(iv) Guarantees by the Borrower of Indebtedness of any Subsidiary (other than any License Subsidiary) and Indebtedness of Borrower to by any of its Subsidiaries Subsidiary (other than a Foreign any Special Purpose Subsidiary) and of Indebtedness of any Foreign Subsidiary of Borrower to any other Foreign Subsidiary of Borrower; Indebtedness of any Foreign Subsidiary of Borrower to the Borrower or any other Subsidiary of Borrower (other than a Foreign any Special Purpose Subsidiary) in an aggregate amount not to exceed $5,000,000 in ); provided that -------- Guarantees by the aggregate at Borrower or any one time outstanding and Subsidiary Loan Party of Indebtedness of Borrower any Subsidiary that is not a Loan Party shall be subject to any of its Foreign Subsidiaries not to exceed $1,000,000 in the aggregate at any one time outstanding;
(iv) Guarantees of Indebtedness permitted under this Section 6.016.05;
(v) purchase money Indebtedness or Capital Lease Obligations in an aggregate amount not exceeding, at any one time outstanding, $5,000,000;
(vi) “xxxx to market” exposure resulting from any Swap Agreement entered into in compliance with Section 6.07;
(vii) Indebtedness under performance, stay, customs, appeal and surety bonds or with respect to workers’ compensation or other like employee benefit claims, in each case incurred in the ordinary course of business;
(viii) Indebtedness in respect of customary netting services, overdraft protections and similar customary arrangements, in each case incurred in the ordinary course of business in connection with deposit accounts;
(ix) Indebtedness of the type described in clause Borrower or any Subsidiary (eother than a Special Purpose Subsidiary) incurred to finance the acquisition from a Qualified Vendor of cellular equipment and ancillary services required for the initial buildout of the definition Network pursuant to a purchase agreement between Triton PCS Equipment Company, L.L.C. and such Qualified Vendor to be entered into within 30 days of “Indebtedness” secured by the Liens permitted under Section 6.02;
Closing Date (x) other Indebtedness in an the "Qualified Vendor Agreement"); provided that the aggregate principal amount of such -------- Indebtedness shall not exceeding, exceed $65 million at any one time outstanding, an amount equal to fifteen percent (15%) of the net worth of the Borrower (on a consolidated basis) disclosed by the most recently delivered financial statements of the Borrower; and
(xi) extensions, renewals and replacements of any of the foregoing that do not increase the outstanding principal amount thereof.
(b) The Borrower will not, nor will it permit any other Loan Party to, issue any preferred stock or other preferred Equity Interests after the Effective Date.;
Appears in 1 contract
Samples: Credit Agreement (Triton PCS Inc)
Indebtedness; Certain Equity Securities. (a) The Borrower Credit Parties will not, and will not permit any other Loan Party Subsidiary to, directly or indirectly, create, incur, assume or permit to exist (including by way of Guarantee Obligations) any Indebtedness, except:
(i) Indebtedness created incurred and outstanding under the Loan Documents;
(ii) (A) Indebtedness existing on of the date hereof European Borrower under the First Lien Notes and set forth (B) other Permitted European Borrower Debt (including, without limitation, any Permitted European Borrower Debt that refinances Indebtedness of the European Borrower under the First Lien Notes) collectively, in Schedule 6.01an aggregate principal amount not to exceed €460,000,000, and Guarantee Obligations in respect of such Indebtedness by each Subsidiary Credit Party and Parent Guarantor;
(iii) Indebtedness of any Subsidiary of U.S. Borrower (other than a Foreign Subsidiary) to under the Borrower or any other Subsidiary of Borrower (other than a Foreign Subsidiary) and Indebtedness of Borrower to any of its Subsidiaries (other than a Foreign Subsidiary) and Indebtedness of any Foreign Subsidiary of Borrower to any other Foreign Subsidiary of Borrower; Indebtedness of any Foreign Subsidiary of Borrower to the Borrower or any other Subsidiary of Borrower (other than a Foreign Subsidiary) Senior Notes in an aggregate principal amount not to exceed $5,000,000 1,300,000,000 and Guarantee Obligations in respect of such Indebtedness by each Parent Guarantor that is a parent company (directly or indirectly) of U.S. Borrower and each U.S. Subsidiary (other than any Receivables Subsidiary and the aggregate at any one time outstanding and Indebtedness of Borrower to any of its Foreign Subsidiaries not to exceed $1,000,000 in the aggregate at any one time outstandingInsurance Subsidiary);
(iv) Guarantees Indebtedness under the Existing Unsecured Debt, including any 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 permitted under this Section 6.01the documents governing such Indebtedness;
(v) purchase money Permitted Capital Markets Debt that refinances Indebtedness permitted pursuant to clauses (i), (iii), (iv) or (xv) of this Section 8.1(a) (and refinancings of such Permitted Capital Markets Debt with Permitted Capital Markets Debt); provided, that (1) such Permitted Capital Markets 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 Capital Markets Debt constitutes Subordinated Indebtedness, (3) the Standard Financing Conditions are met, (4) if such Permitted Capital Markets Debt refinances any CCSC 2026 Debentures or CCSC 2096 Debentures and if the Indebtedness under this Agreement is rated Ba2 or lower by Moody’s and BB- or lower by S&P, Crown Holdings shall provide written confirmation from each of Moody’s and S&P that the rating of such Indebtedness will not be downgraded by either Moody’s or S&P as a result of the incurrence of such Permitted Capital Markets Debt and (5) in case of any Indebtedness incurred by or guaranteed by European Borrower or any of its Subsidiaries or under which European Borrower or any of its Subsidiaries is an obligor, subject to Section 7.20, the holders of such Indebtedness or Capital Lease 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 an aggregate amount not exceeding, at respect of such Indebtedness by each Parent Guarantor that is a parent company (directly or indirectly) of U.S. Borrower and each U.S. Subsidiary (other than any one time outstanding, $5,000,000Receivables Subsidiary and the Insurance Subsidiary);
(vi) “xxxx Indebtedness outstanding or committed on the Fourth Amendment Effective Date and listed on Schedule 6.5(c)(i) or (ii) (as such Schedules are amended as of the Fourth Amendment Effective Date), in each case up to market” exposure resulting from the amounts set forth on such Schedule and any Swap Agreement entered into 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 compliance with Section 6.07a 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 performance, stay, customs, appeal and surety bonds one or more Permitted Receivables or Factoring Financings; provided that with respect to workers’ compensation 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 Fourth Amendment 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 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 property (real or personal), plant or equipment used in the businesses referred to in Section 8.3(c), including Capitalized Lease Obligations 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 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 incurred and outstanding under this clause (xiii), together with Indebtedness incurred and outstanding under clauses (xiv) and (xvi) of this Section 8.1(a), does not exceed the Debt Basket Amount;
(xiv) Indebtedness of any Subsidiary of U.S. Borrower or European Borrower issued and outstanding on or prior to the date on which such Person becomes a Subsidiary in 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 Capital Markets Debt the net proceeds of which are used solely to 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 $200,000,000;
(xvi) Attributable Debt in respect of sale and leaseback transactions permitted by Section 8.6; provided that (a) the Standard Financing Conditions are met; and (b) 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 exceed the Debt Basket Amount;
(xvii) 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 like employee benefit claimsbenefits or property, casualty or liability insurance to Crown Holdings or any 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;
(viiixix) 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 for the purpose of financing such acquisition;
(xx) obligations in respect of customary netting servicesperformance 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, overdraft protections and draft or similar customary arrangementsinstrument 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 each case 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 (x) if any such Indebtedness in connection with deposit accountsexcess of $50,000,000 is outstanding at any 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 (y) 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;
(ixxxiv) Indebtedness of the type described Subsidiaries that are not Credit Parties to Credit Parties issued solely as consideration for asset sales permitted by Section 8.5(k);
(A) Guarantee Obligations of Crown Holdings or any of its Subsidiaries in clause respect of Indebtedness permitted to be incurred pursuant to clauses (ei), (xii), (xvi), (xvii), (xviii), (xix), (xx), (xxi), (xxii), (xxvii), (xxviii), (xxix) and (xxx) of this Section 8.1(a) (provided that, to the definition extent that such Indebtedness is subordinated to the Obligations, such Guarantee Obligations shall be subordinated to the Obligations on terms and conditions reasonably acceptable to Administrative Agent) and (B) additional Guarantee Obligations of “Indebtedness” secured by the Liens Crown Holdings or any of its Subsidiaries in respect of Indebtedness permitted to be incurred pursuant to this Section 8.1(a) (other than Guarantee Obligations of Indebtedness permitted under Section 6.02;
(x8.1(a)(vii)) other Indebtedness in an aggregate principal amount not exceeding, to exceed $50,000,000 at any one time;
(xxvi) Indebtedness of Crown Holdings in the form of Disqualified Preferred Stock in an aggregate amount not to exceed $250,000,000;
(xxvii) Permitted European Borrower Debt in an aggregate principal amount not to exceed €500,000,000 at any time, the net proceeds of which are used (i) to finance a Permitted Acquisition (and to pay fees and expenses related thereto) (provided that (A) the Standard Financing Conditions are met and (B) Total Available Revolving Commitments at the time outstanding, an amount equal of incurrence and after giving effect to fifteen percent the use of the proceeds thereof and the incurrence of any Revolving Loans necessary to consummate such Permitted Acquisition exceeds $200,000,000) or (15%ii) to refinance any Indebtedness permitted pursuant to clauses (iii) and (iv) of the net worth of the Section 8.1(a) (provided that (A) such Permitted European Borrower (on a consolidated basis) disclosed by the most recently delivered financial statements of the Borrower; and
(xi) extensions, renewals and replacements of any of the foregoing that do Debt does not increase the outstanding principal amount thereof.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), (B) if the Indebtedness being refinanced is Subordinated Indebtedness, such Permitted European Borrower Debt constitutes Subordinated Indebtedness and (C) the Standard Financing Conditions are met;
(bxxviii) The Permitted European Borrower will notDebt not otherwise permitted hereunder; provided, nor will it permit any other Loan Party tothat as of the date on which such Permitted European Borrower Debt is incurred or created and after giving effect to the incurrence of such Indebtedness on a Pro Forma Basis for the period of four Fiscal Quarters for which financial statements pursuant to Section 7.1 immediately preceding the date on which such Permitted European Borrower Debt is incurred or created, issue any preferred stock (i) no Event of Default or other preferred Equity Interests after Unmatured Event of Default would exist hereunder, (ii) the Effective Date.Credit Parties would be in compliance with Section 9.1 through Section 9.3, inclusive, and (iii) the European Borrower Total Leverage Ratio shall not be greater than 3.5 to 1.0 (which requirements shall be certified by the Credit Parties pursuant to an incurrence compliance certificate delivered by the Credit Parties to the Administrative Agent, not less than three (3) Business Days prior to the date on which such Permitted European Borrower Debt is incurred or created, which includes detailed computations of the requirements set forth in clauses (ii) and (iii) above);
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Borrower None of the Company or any Subsidiary will not, and will not permit any other Loan Party to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) (x) Indebtedness existing on the date hereof Effective Date and (except in the case of Guarantees in an amount less than $10,000,000) set forth in on Schedule 6.01, (y) Refinancing Indebtedness in respect of debt owed to non-Affiliates reflected on such schedule and (z) extensions and renewals of debt owed by the Company or any Subsidiary to the Company or any Subsidiary reflected on such schedule;
(iii) Indebtedness of the Company or any Subsidiary of Borrower (other than a Foreign Subsidiary) to the Borrower Company or any other Subsidiary of Borrower Subsidiary; provided that (A) such Indebtedness shall not have been transferred to any Person other than a Foreign Subsidiarythe Company or any Subsidiary and (B) and any such Indebtedness owing by any Loan Party shall be unsecured and, during any Pledge Effectiveness Period, subordinated in right of Borrower to any of its Subsidiaries (other than a Foreign Subsidiary) and Indebtedness of any Foreign Subsidiary of Borrower to any other Foreign Subsidiary of Borrower; Indebtedness of any Foreign Subsidiary of Borrower payment to the Borrower or any other Subsidiary Loan Document Obligations in accordance with the provisions of Borrower (other than a Foreign Subsidiary) in an aggregate amount not to exceed $5,000,000 in the aggregate at any one time outstanding and Indebtedness of Borrower to any of its Foreign Subsidiaries not to exceed $1,000,000 in the aggregate at any one time outstandingExhibit D hereto;
(iv) (x) Guarantees incurred in compliance with clause (a)(xiv) or (xv) below, (y) Guarantees by Guarantor Loan Parties of Indebtedness of other Guarantor Loan Parties, Guarantees by Foreign Borrowers of Indebtedness of other Foreign Borrowers and Guarantees by Subsidiaries that are not Loan Parties of Indebtedness of other Subsidiaries that are not Loan Parties, in each case, in respect of Indebtedness otherwise permitted under to be incurred pursuant to this Section 6.016.01 (other than clauses (ii), (vi) and (xi)); provided, that if the Indebtedness that is being Guaranteed is unsecured and/or subordinated to the Loan Document Obligations, the Guarantee shall also be unsecured and/or subordinated to the Loan Document Obligations on terms not less favorable in any material respect to the Lenders and (z) Guarantees by Guarantor Loan Parties of Indebtedness of Subsidiaries that are not Guarantor Loan Parties, other than in respect of Permitted Cash Pooling Arrangements, in an aggregate principal amount not at any time in excess of $175,000,000;
(v) purchase money Indebtedness of the Company or any Subsidiary (x)(A) incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and 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 the principal amount of such Indebtedness does not exceed the cost of acquiring, constructing or improving such fixed or capital assets or (B) assumed in an connection with the acquisition of any fixed or capital assets, and Refinancing Indebtedness in respect of any of the foregoing; provided that the aggregate principal amount not exceedingof Indebtedness permitted by this clause (a)(v)(x) shall not, except as otherwise permitted by clauses (a)(xiv) or (xv) below and Section 6.02(a)(xvii), exceed $150,000,000 at any one time outstanding, $5,000,000and (y) Indebtedness of the Company or any Subsidiary consisting of Capital Lease Obligations or Synthetic Lease Obligations incurred in connection with Scheduled Dispositions that are effected as Sale/Leaseback Transactions;
(vi) “xxxx Indebtedness (other than syndicated bank facilities, capital markets Indebtedness and any other Indebtedness represented or governed by agreements or instruments containing restrictions on dividend payments to market” exposure resulting from the Company, Guarantees of the Obligations or the provision of Liens (except with respect to assets securing such Indebtedness) to secure the Obligations) of any Swap Agreement entered Person that becomes a Subsidiary (or of any Person not previously a Subsidiary that is merged or consolidated with or into a Subsidiary in compliance a transaction permitted hereunder) after the date hereof, or Indebtedness of any Person that is assumed by any Subsidiary in connection with an acquisition of assets by such Subsidiary in a Permitted Acquisition, provided that (A) such Indebtedness exists at the time such Person becomes a 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 Subsidiary (or such merger or consolidation) or such assets being acquired and (B) neither the Company nor any Subsidiary (other than such Person or the Subsidiary with which such Person is merged or consolidated or the Person that so assumes such Person’s Indebtedness) shall Guarantee or otherwise become liable for the payment of such Indebtedness, and Refinancing Indebtedness in respect of any of the foregoing; provided that, except as otherwise permitted by clause (a)(xiv) or (xv) below, after giving effect to such Indebtedness permitted by this clause (vi), the Company shall be in Pro Forma Compliance with the covenant set forth in Section 6.076.12;
(vii) Indebtedness under performanceof Foreign Subsidiaries in an aggregate principal amount not in excess of $400,000,000, stayexcept as otherwise permitted by clause (a)(xv) below;
(viii) (A)(x) Indebtedness of the Company or other Domestic Subsidiaries in respect of any overdrafts and related liabilities arising from treasury, customsdepository and cash management services, provided that such Indebtedness shall be repaid in full within 15 Business Days of the incurrence thereof and (y) Indebtedness of Foreign Subsidiaries in respect of Permitted Cash Pooling Arrangements, provided that such Indebtedness (1) shall not exceed $150,000,000 in the aggregate at any time outstanding and (2) shall be reduced to zero not less frequently than every 90 days, (B) Indebtedness owed by the Company or any Subsidiary to the Company or any Subsidiary pursuant to intercompany cash pooling arrangements in the ordinary course of business and consistent with past practices and (C) Indebtedness in connection with automated clearing-house transfers of funds;
(ix) (x) Indebtedness in respect of letters of credit, surety and performance bonds, bank guarantees, appeal bonds and surety bonds similar instruments issued for the account of the Company or with respect to any Subsidiary supporting obligations of the Company or any Subsidiary under (A) workers’ compensation or and other like employee benefit claims, in each case incurred social security and/or insurance laws in the ordinary course of business;
, (viiiB) Indebtedness in respect bids, trade contracts, leases, statutory obligations, customs/duties, taxes and obligations of customary netting services, overdraft protections and similar customary arrangements, in each case incurred a like nature in the ordinary course of business in connection with deposit accounts;
and (ixC) judgments pending appeal that do not constitute an Event of Default and (y) Indebtedness of the type described referred to in clause (ef) of the definition thereof securing judgments, decrees, attachments or awards that do not constitute an Event of “Indebtedness” secured by the Liens permitted Default under Section 6.02clause (1) of Article VII;
(x) Indebtedness of the Company or any Subsidiary in the form of purchase price adjustments, earn-outs or other arrangements representing acquisition consideration or deferred payments of a similar nature incurred in connection with any Permitted Acquisition or any other Investment;
(xi) Indebtedness in respect of Third Party Interests issued by Securitization Vehicles in Securitizations permitted by Section 6.05 in an aggregate amount at any time outstanding not in excess of $200,000,000, and Indebtedness consisting of representations, warranties, covenants and indemnities made by, and repurchase and other obligations of, the Company or a Subsidiary in connection with Securitizations permitted by Section 6.05; provided that such representations, warranties, covenants, indemnities and repurchase and other obligations are of the type customarily included in securitizations of accounts receivable intended to constitute true sales of such accounts receivable, if customary for such securitizations to be intended to constitute true sales;
(xii) Permitted Unsecured Indebtedness; provided that, after giving effect to the incurrence thereof, the Leverage Ratio calculated on a Pro Forma Basis giving effect to such incurrence shall be not more than 0.25 less than the then applicable ratio under Section 6.12 for the most recent Test Period prior to such time for which financial statements shall have been delivered pursuant to Section 5.01(a) or Section 5.01(b) (after giving effect, however, to any adjustments to such applicable ratio based on the Cumulative Leverage Ratio Increase Amount reflecting any such Indebtedness that constitutes Pension Funding Indebtedness);
(xiii) other unsecured Indebtedness in an aggregate principal amount not exceeding, exceeding $150,000,000 at any one time outstanding; provided that the aggregate principal amount of Indebtedness of the Subsidiaries that are not Guarantor Loan Parties permitted by this clause (xiii) shall not exceed $75,000,000 at any time outstanding;
(xiv) after the Investment Grade Date, other Indebtedness of the Company; provided that after giving effect to the incurrence of such Indebtedness, the Company shall be in Pro Forma Compliance with the covenant set forth in Section 6.12;
(xv) after the Investment Grade Date, other Indebtedness of Subsidiaries in an aggregate principal amount, which when taken together (without duplication) with (A) all Indebtedness of Subsidiaries (including Guarantees of Permitted Unsecured Indebtedness) under clauses (a)(ii) (in the case of Indebtedness to non-Affiliates), (iv), (v), (vi), (vii), (xi), (xii) and (xiii) above, including Indebtedness in respect of Capital Lease Obligations and Synthetic Lease Obligations incurred pursuant to Section 6.06, plus (B) the amount of Indebtedness or other obligations secured by Liens referred to in clause (A) of Section 6.02(a)(xvii) or otherwise secured in reliance on Section 6.02(a)(xvii), does not at any time exceed an amount equal to fifteen percent (15%) 10% of Consolidated Tangible Assets as of the net worth last day of the Borrower (on a consolidated basis) disclosed by the most recently delivered recent fiscal quarter in respect of which financial statements have been delivered pursuant to Section 5.01, provided that (x) after giving effect to the incurrence of such Indebtedness, the BorrowerCompany shall be in Pro Forma Compliance with the covenant set forth in Section 6.12 and (y) no Securitization or similar financing involving the pledge or sale of accounts receivable may be effected under this clause (xv);
(xvi) Guarantees or joint and several liability arising under a Dutch fiscal unity; and
(xixvii) extensions, renewals Indebtedness arising under a declaration of joint and replacements several liability used for the purpose of any Article 2:403 of the foregoing that do not increase Dutch Civil Code (and any residual liability under such declaration arising pursuant to section 2:404(2) of the outstanding principal amount thereofDutch Civil Code).
(b) The Borrower Company will not, nor will it not permit any other Loan Party to, Subsidiary to issue any preferred stock or other Equity Interests except for preferred Equity Interests after issued to and held by the Effective DateCompany or any other Subsidiary (and, in the case of any preferred Equity Interests issued by any Foreign Borrower or Subsidiary Loan Party, such preferred Equity Interests shall be held by the Company, a Borrower or a Subsidiary Loan Party).
Appears in 1 contract
Samples: Credit Agreement (NCR Corp)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and will not permit any other Loan Party Subsidiary to, create, incur, assume or permit to exist any IndebtednessIndebtedness or any Attributable Debt in respect of Sale and Leaseback Transactions, except:
(i) Indebtedness created under the Loan Documents;
(ii) the Subordinated Debt;
(iii) Indebtedness existing on the date hereof and and, in the case of Indebtedness owed to Persons other than the Borrower or Subsidiaries in a principal amount in excess of $1,000,000, set forth in on Schedule 6.01;
(iiiiv) unsecured Indebtedness of the Borrower, the Net Proceeds of which are used solely to prepay Term Loans and pay associated interest, costs and expenses within five Business Days of the receipt of the Net Proceeds of such unsecured Indebtedness;
(v) Indebtedness represented by Commercial Paper; provided that such Indebtedness is permitted pursuant to Section 6.13;
(vi) Permitted Subordinated Indebtedness; provided that such Indebtedness is permitted pursuant to Section 6.13;
(vii) unsecured Indebtedness of the Borrower or any Subsidiaries in addition to the Indebtedness permitted above; provided that the aggregate principal amount of Indebtedness permitted by this clause shall not exceed $50,000,000 at any time outstanding; and provided further, that such Indebtedness is permitted pursuant to Section 6.13;
(viii) Indebtedness of any Subsidiary of Borrower the Foreign Subsidiaries (other than Indebtedness owed to the Borrower or Domestic Subsidiaries) in an aggregate principal amount at any time outstanding not in excess of the greater of (i) $100,000,000 and (ii) an amount equal to 10% of the total assets of all Foreign Subsidiaries as of the end of the most recent fiscal quarter in respect of which financial statements have been delivered pursuant to Section 5.01 (calculated on a combined basis for such Foreign SubsidiarySubsidiaries in accordance with GAAP);
(ix) unsecured Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary Subsidiary; provided that (x) such Indebtedness owed by any Loan Party is subordinated to the Obligations in accordance with the provisions of Borrower an Affiliate Subordination Agreement substantially in the form of Exhibit J hereto and (other than a Foreign Subsidiaryy) and Indebtedness of Borrower to any of its Subsidiaries (other than a Foreign Subsidiary) and Indebtedness of any Foreign Subsidiary of Borrower to any other Foreign Subsidiary of Borrower; Indebtedness of any Foreign Subsidiary of Borrower that is not a Loan Party to the Borrower or any Subsidiary Loan Party shall be subject to Section 6.04;
(x) Indebtedness and Attributable Debt of the Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any franchise development rights or capital or other long-term assets, including Capital Lease Obligations, 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 (or prior to the acquisition of any Subsidiary holding such assets, provided that such Indebtedness or Attributable Debt was not incurred in contemplation thereof) and Attributable Debt in connection with Sale and Leaseback Transactions permitted by Section 6.06, provided that (x) such Indebtedness or Attributable Debt is incurred prior to or within 90 days after such acquisition or the completion of Borrower such construction or improvement, and (other than a Foreign Subsidiaryy) the amount of such Indebtedness or Attributable Debt does not exceed the cost of acquiring, constructing or improving such franchise development rights or assets, and (z) the aggregate principal amount of Indebtedness permitted by this clause (x) and Attributable Debt in an aggregate amount connection with Sale and Leaseback Transactions permitted by Section 6.06, together with any Refinancing Indebtedness in respect thereof permitted by clause (xi) below, shall not to exceed $5,000,000 in the aggregate 40,000,000 at any one time outstanding and Indebtedness of Borrower to any of its Foreign Subsidiaries not to exceed $1,000,000 in the aggregate at any one time outstanding;
(xi) Refinancing Indebtedness in respect of the Indebtedness provided by clauses (iii), (iv) Guarantees of Indebtedness permitted under this Section 6.01and (x);
(vxii) purchase money Guarantees by the Borrower or other Loan Parties of Indebtedness of Domestic Subsidiaries or, to the extent permitted by Section 6.04(c), Foreign Subsidiaries;
(xiii) Guarantees by the Borrower of Indebtedness or Capital Lease Obligations Attributable Debt of Franchisees in an aggregate amount not exceeding, at any one time outstanding, outstanding not exceeding $5,000,000;
(vi) “xxxx 15,000,000 or such lesser amount as is permitted to market” exposure resulting from any Swap Agreement entered into in compliance with be outstanding pursuant to Section 6.07;
(vii) Indebtedness under performance, stay, customs, appeal and surety bonds or with respect to workers’ compensation or other like employee benefit claims, in each case incurred in the ordinary course of business;
(viii) Indebtedness in respect of customary netting services, overdraft protections and similar customary arrangements, in each case incurred in the ordinary course of business in connection with deposit accounts;
(ix) Indebtedness of the type described in clause (e) of the definition of “Indebtedness” secured by the Liens permitted under Section 6.02;
(x) other Indebtedness in an aggregate principal amount not exceeding, at any one time outstanding, an amount equal to fifteen percent (15%) of the net worth of the Borrower (on a consolidated basis) disclosed by the most recently delivered financial statements of the Borrower6.04(c); and
(xixiv) extensions, renewals and replacements Indebtedness (other than Long-Term Indebtedness) not in excess of $10,000,000 at any time outstanding incurred to finance the payment of the foregoing that do not increase the outstanding principal amount thereofpremiums on insurance policies.
(b) The Borrower will not, nor will it not permit any other Loan Party to, Domestic Subsidiary or Significant Foreign Subsidiary to issue any preferred stock Equity Interests other than to the Borrower or other any Subsidiary Loan Party; provided that any such preferred Equity Interests after issued to the Effective DateBorrower or any Subsidiary Loan Party shall be pledged pursuant to the terms of the Collateral Agreement or, in the case of Equity Interests of Significant Foreign Subsidiaries, a Foreign Pledge Agreement.
Appears in 1 contract
Samples: Credit Agreement (Blockbuster Inc)
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and will not permit any other Loan Party to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) Indebtedness existing on the date hereof and set forth in Schedule 6.01;
(iii) Indebtedness of any Subsidiary of Borrower (other than a Foreign Subsidiary) to the Borrower or any other Subsidiary of Borrower (other than a Foreign Subsidiary) and Indebtedness of Borrower to any of its Subsidiaries (other than a Foreign Subsidiary) and Indebtedness of any Foreign Subsidiary of Borrower to any other Foreign Subsidiary of Borrower; ;
(iv) Indebtedness of any Foreign Subsidiary of Borrower to the Borrower or any other Subsidiary of Borrower (other than a Foreign Subsidiary) in an aggregate amount not to exceed $5,000,000 1,000,000 in the aggregate at any one time outstanding and Indebtedness of Borrower to any of its Foreign Subsidiaries not to exceed $1,000,000 in the aggregate at any one time outstanding;
(ivv) Guarantees of Indebtedness permitted under this Section 6.01;
(vvi) purchase money Indebtedness or Capital Lease Obligations in an aggregate amount not exceeding, at any one time outstanding, $5,000,0003,000,000;
(vivii) “xxxx to market” exposure resulting from any Swap Agreement entered into in compliance with Section 6.07;
(viiviii) Indebtedness under performance, stay, customs, appeal and surety bonds or with respect to workers’ compensation or other like employee benefit claims, in each case incurred in the ordinary course of business;
(viiiix) Indebtedness in respect of customary netting services, overdraft protections and similar customary arrangements, in each case incurred in the ordinary course of business in connection with deposit accounts;
(ixx) Indebtedness of the type described in clause (e) of the definition of “Indebtedness” secured by the Liens permitted under Section 6.02;
(xxi) other Indebtedness in an aggregate principal amount not exceeding, exceeding $10,000,000 at any one time outstanding, an amount equal to fifteen percent (15%) of the net worth of the Borrower (on a consolidated basis) disclosed by the most recently delivered financial statements of the Borrower; and
(xixii) extensions, renewals and replacements of any of the foregoing that do not increase the outstanding principal amount thereof.
(b) The Borrower will not, nor will it permit any other Loan Party to, issue any preferred stock or other preferred Equity Interests after the Effective Date.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and will not permit any other Loan Party to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) Indebtedness existing on the date hereof and set forth in Schedule 6.01;
(iii) Indebtedness of any Domestic Subsidiary of Borrower (other than a Foreign Subsidiary) to the Borrower or any other Domestic Subsidiary of Borrower (other than a Foreign Subsidiary) and Indebtedness of Borrower to any of its Subsidiaries Domestic Subsidiaries;
(other than a Foreign Subsidiaryiv) and Indebtedness of any Foreign Subsidiary of Borrower to any other Foreign Subsidiary of Borrower; Indebtedness of any Foreign Subsidiary of Borrower to the Borrower or any other Subsidiary of Borrower (other than a Foreign Domestic Subsidiary) in an aggregate amount not to exceed $5,000,000 in the aggregate at any one time outstanding , and Indebtedness of Borrower to or any of its Domestic Subsidiaries to Foreign Subsidiaries not to exceed $1,000,000 in the aggregate at any one time outstandingSubsidiaries;
(ivv) Guarantees of Indebtedness permitted under this Section 6.016.01(a);
(vvi) Capital Lease Obligations or purchase money Indebtedness or Capital Lease Obligations in an aggregate amount not exceeding, at any one time outstanding, the greater of (A) $5,000,0005,000,000 and (B) the lesser of (1) an amount equal to ten percent (10%) of the Revolving Commitments and (2) $25,000,000;
(vivii) “xxxx to market” exposure resulting from any Swap Agreement entered into in compliance with permitted under Section 6.076.07 hereof;
(viiviii) Indebtedness under performanceassociated with performance bonds, staybid bonds, customssurety bonds, appeal and surety bonds or customs bonds required in the ordinary course of business or in connection with respect the enforcement or defense of rights or claims of any other Loan Party or any Subsidiary;
(ix) Indebtedness owed to workers’ compensation any Person providing property, casualty, liability or other like employee benefit claimsinsurance to the Borrower or any of its Subsidiaries, so long as the amount of such Indebtedness is not in each case excess of the amount of the unpaid cost of, and shall be incurred only to defer the cost of, such insurance for the period in which such Indebtedness is incurred and such Indebtedness is outstanding only during the period covered by the insurance (not to exceed one year of premiums for any single insurance policy);
(x) Indebtedness not to exceed at any one time outstanding $10,000,000 in the aggregate, of which up to $5,000,000 may be secured by Liens permitted by Section 6.02(d);
(xi) Subordinated Debt to the extent approved in advance in writing by the Required Lenders;
(xii) endorsements of negotiable instruments for deposit or collection in the ordinary course of business;
(viii) Indebtedness in respect of customary netting services, overdraft protections and similar customary arrangements, in each case incurred in the ordinary course of business in connection with deposit accounts;
(ix) Indebtedness of the type described in clause (e) of the definition of “Indebtedness” secured by the Liens permitted under Section 6.02;
(x) other Indebtedness in an aggregate principal amount not exceeding, at any one time outstanding, an amount equal to fifteen percent (15%) of the net worth of the Borrower (on a consolidated basis) disclosed by the most recently delivered financial statements of the Borrower; and
(xixiii) extensions, renewals and replacements of any of the foregoing that do not increase the outstanding principal amount thereof; and
(xiv) unsecured Permitted Junior Indebtedness in an aggregate principal amount not to exceed $400,000,000.00.
(b) The Borrower will not, nor will it permit any other Loan Party to, issue (i) any preferred stock Disqualified Capital Stock or (ii) any other preferred Equity Interests after (which for the Effective Dateavoidance of doubt shall not constitute Disqualified Capital Stock) unless (A) the terms of such preferred Equity Interests provide that any payment of dividends or other Restricted Payment in respect thereof shall be subject to compliance with Section 6.08 hereof and (B) any terms of such preferred Equity Interests providing for cash dividends, cash distributions or cash payments (other than reimbursement of reasonable and customary expenses and Permitted Tax Distributions) shall be reasonably acceptable to the Administrative Agent.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Borrower will not, and will not permit any other Loan Party to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) Indebtedness existing on the date hereof and set forth in Schedule 6.01;
(iii) Indebtedness of any Domestic Subsidiary of Borrower (other than a Foreign Subsidiary) to the Borrower or any other Domestic Subsidiary of Borrower (other than a Foreign Subsidiary) and Indebtedness of Borrower to any of its Subsidiaries Domestic Subsidiaries;
(other than a Foreign Subsidiaryiv) and Indebtedness of any Foreign Subsidiary of Borrower to any other Foreign Subsidiary of Borrower; Indebtedness of any Foreign Subsidiary of Borrower to the Borrower or any other Subsidiary of Borrower (other than a Foreign Domestic Subsidiary) in an aggregate amount not to exceed $5,000,000 in the aggregate at any one time outstanding , and Indebtedness of Borrower to or any of its Domestic Subsidiaries to Foreign Subsidiaries not to exceed $1,000,000 in the aggregate at any one time outstandingSubsidiaries;
(ivv) Guarantees of Indebtedness permitted under this Section 6.016.01(a);
(vvi) Capital Lease Obligations or purchase money Indebtedness or Capital Lease Obligations in an aggregate amount not exceeding, at any one time outstanding, the greater of (A) $5,000,0005,000,000 and (B) the lesser of (1) an amount equal to ten percent (10%) of the Revolving Commitments and (2) $25,000,000;
(vivii) “xxxx to market” exposure resulting from any Swap Agreement entered into permitted under Section 6.07 hereof;
(viii) Indebtedness associated with performance bonds, bid bonds, surety bonds, appeal bonds or customs bonds required in compliance the ordinary course of business or in connection with Section 6.07the enforcement or defense of rights or claims of any other Loan Party or any Subsidiary;
(viiix) Indebtedness under performanceowed to any Person providing property, staycasualty, customs, appeal and surety bonds or with respect to workers’ compensation liability or other like employee benefit claimsinsurance to the Borrower or any of its Subsidiaries, so long as the amount of such Indebtedness is not in each case excess of the amount of the unpaid cost of, and shall be incurred only to defer the cost of, such insurance for the period in which such Indebtedness is incurred and such Indebtedness is outstanding only during the period covered by the insurance (not to exceed one year of premiums for any single insurance policy);
(x) Indebtedness not to exceed at any one time outstanding $10,000,000 in the aggregate, of which up to $5,000,000 may be secured by Liens permitted by Section 6.02(d);
(xi) Subordinated Debt to the extent approved in advance in writing by the Required Lenders;
(xii) endorsements of negotiable instruments for deposit or collection in the ordinary course of business;
(viii) Indebtedness in respect of customary netting services, overdraft protections and similar customary arrangements, in each case incurred in the ordinary course of business in connection with deposit accounts;
(ix) Indebtedness of the type described in clause (e) of the definition of “Indebtedness” secured by the Liens permitted under Section 6.02;
(x) other Indebtedness in an aggregate principal amount not exceeding, at any one time outstanding, an amount equal to fifteen percent (15%) of the net worth of the Borrower (on a consolidated basis) disclosed by the most recently delivered financial statements of the Borrower; and
(xixiii) extensions, renewals and replacements of any of the foregoing that do not increase the outstanding principal amount thereof; and
(xiv) unsecured Permitted Junior Indebtedness in an aggregate principal amount not to exceed $400,000,000.00.
(b) The Borrower will not, nor will it permit any other Loan Party to, issue (i) any preferred stock Disqualified Capital Stock or (ii) any other preferred Equity Interests after (which for the Effective Dateavoidance of doubt shall not constitute Disqualified Capital Stock) unless (A) the terms of such preferred Equity Interests provide that any payment of dividends or other Restricted Payment in respect thereof shall be subject to compliance with Section 6.08 hereof and (B) any terms of such preferred Equity Interests providing for cash dividends, cash distributions or cash payments (other than reimbursement of reasonable and customary expenses and Permitted Tax Distributions) shall be reasonably acceptable to the Administrative Agent.
Appears in 1 contract
Indebtedness; Certain Equity Securities. (a) The Borrower Credit Parties will not, and will not permit any other Loan Party Subsidiary to, directly or indirectly, create, incur, assume or permit to exist (including by way of Guarantee Obligations) any Indebtedness, except:
(i) Indebtedness created incurred and outstanding under the Loan Documents;
(ii) (A) Indebtedness existing on of the date hereof European Borrower under the First Lien Notes and set forth (B) other Permitted European Borrower Debt (including, without limitation, any Permitted European Borrower Debt that refinances Indebtedness of the European Borrower under the First Lien Notes) collectively, in Schedule 6.01an aggregate principal amount not to exceed €460,000,000, and Guarantee Obligations in respect of such Indebtedness by each Subsidiary Credit Party and Parent Guarantor;
(iii) Indebtedness of any Subsidiary of U.S. Borrower (other than a Foreign Subsidiary) to under the Borrower or any other Subsidiary of Borrower (other than a Foreign Subsidiary) and Indebtedness of Borrower to any of its Subsidiaries (other than a Foreign Subsidiary) and Indebtedness of any Foreign Subsidiary of Borrower to any other Foreign Subsidiary of Borrower; Indebtedness of any Foreign Subsidiary of Borrower to the Borrower or any other Subsidiary of Borrower (other than a Foreign Subsidiary) Senior Notes in an aggregate principal amount not to exceed $5,000,000 1,300,000,000 and Guarantee Obligations in respect of such Indebtedness by each Parent Guarantor that is a parent company (directly or indirectly) of U.S. Borrower and each U.S. Subsidiary (other than any Receivables Subsidiary and the aggregate at any one time outstanding and Indebtedness of Borrower to any of its Foreign Subsidiaries not to exceed $1,000,000 in the aggregate at any one time outstandingInsurance Subsidiary);
(iv) Guarantees Indebtedness under the Existing Unsecured Debt, including any 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 permitted under this Section 6.01the documents governing such Indebtedness;
(v) purchase money Permitted Capital Markets Debt that refinances Indebtedness permitted pursuant to clauses (i), (iii), (iv) or (xv) of this Section 8.1(a) (and refinancings of such Permitted Capital Markets Debt with Permitted Capital Markets Debt); provided, that (1) such Permitted Capital Markets 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 Capital Markets Debt constitutes Subordinated Indebtedness, (3) the Standard Financing Conditions are met, (4) if such Permitted Capital Markets 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 Capital Markets Debt and (5) in case of any Indebtedness incurred by or guaranteed by European Borrower or any of its Subsidiaries or under which European Borrower or any of its Subsidiaries is an obligor, subject to Section 7.20, the holders of such Indebtedness or Capital Lease 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 an aggregate amount not exceeding, at respect of such Indebtedness by each Parent Guarantor that is a parent company (directly or indirectly) of U.S. Borrower and each U.S. Subsidiary (other than any one time outstanding, $5,000,000Receivables Subsidiary and the Insurance Subsidiary);
(vi) “xxxx Indebtedness outstanding or committed on the Fourth Amendment Effective Date and listed on Schedule 6.5(c)(i) or (ii) (as such Schedules are amended as of the Fourth Amendment Effective Date), in each case up to market” exposure resulting from the amounts set forth on such Schedule and any Swap Agreement entered into 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 compliance with Section 6.07a 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 performance, stay, customs, appeal and surety bonds one or more Permitted Receivables or Factoring Financings; provided that with respect to workers’ compensation 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 Fourth Amendment 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 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 property (real or personal), plant or equipment used in the businesses referred to in Section 8.3(c), including Capitalized Lease Obligations 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 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 incurred and outstanding under this clause (xiii), together with Indebtedness incurred and outstanding under clauses (xiv) and (xvi) of this Section 8.1(a), does not exceed the Debt Basket Amount;
(xiv) Indebtedness of any Subsidiary of U.S. Borrower or European Borrower issued and outstanding on or prior to the date on which such Person becomes a Subsidiary in 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 Capital Markets Debt the net proceeds of which are used solely to 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 $200,000,000;
(xvi) Attributable Debt in respect of sale and leaseback transactions permitted by Section 8.6; provided that (a) the Standard Financing Conditions are met; and (b) 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 exceed the Debt Basket Amount;
(xvii) 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 like employee benefit claimsbenefits or property, casualty or liability insurance to Crown Holdings or any 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;
(viiixix) 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 for the purpose of financing such acquisition;
(xx) obligations in respect of customary netting servicesperformance 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, overdraft protections and draft or similar customary arrangementsinstrument 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 each case 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 (x) if any such Indebtedness in connection with deposit accountsexcess of $50,000,000 is outstanding at any 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 (y) 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;
(ixxxiv) Indebtedness of the type described Subsidiaries that are not Credit Parties to Credit Parties issued solely as consideration for asset sales permitted by Section 8.5(k);
(A) Guarantee Obligations of Crown Holdings or any of its Subsidiaries in clause respect of Indebtedness permitted to be incurred pursuant to clauses (ei), (xii), (xvi), (xvii), (xviii), (xix), (xx), (xxi), (xxii), (xxvii), (xxviii), (xxix) and (xxx) of this Section 8.1(a) (provided that, to the definition extent that such Indebtedness is subordinated to the Obligations, such Guarantee Obligations shall be subordinated to the Obligations on terms and conditions reasonably acceptable to Administrative Agent) and (B) additional Guarantee Obligations of “Indebtedness” secured by the Liens Crown Holdings or any of its Subsidiaries in respect of Indebtedness permitted to be incurred pursuant to this Section 8.1(a) (other than Guarantee Obligations of Indebtedness permitted under Section 6.02;
(x8.1(a)(vii)) other Indebtedness in an aggregate principal amount not exceeding, to exceed $50,000,000 at any one time;
(xxvi) Indebtedness of Crown Holdings in the form of Disqualified Preferred Stock in an aggregate amount not to exceed $250,000,000;
(xxvii) Permitted European Borrower Debt in an aggregate principal amount not to exceed €500,000,000 at any time, the net proceeds of which are used (i) to finance a Permitted Acquisition (and to pay fees and expenses related thereto) (provided that (A) the Standard Financing Conditions are met and (B) Total Available Revolving Commitments at the time outstanding, an amount equal of incurrence and after giving effect to fifteen percent the use of the proceeds thereof and the incurrence of any Revolving Loans necessary to consummate such Permitted Acquisition exceeds $200,000,000) or (15%ii) to refinance any Indebtedness permitted pursuant to clauses (iii) and (iv) of the net worth of the Section 8.1(a) (provided that (A) such Permitted European Borrower (on a consolidated basis) disclosed by the most recently delivered financial statements of the Borrower; and
(xi) extensions, renewals and replacements of any of the foregoing that do Debt does not increase the outstanding principal amount thereof.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), (B) if the Indebtedness being refinanced is Subordinated Indebtedness, such Permitted European Borrower Debt constitutes Subordinated Indebtedness and (C) the Standard Financing Conditions are met;
(bxxviii) The Permitted European Borrower will notDebt not otherwise permitted hereunder; provided, nor will it permit any other Loan Party tothat as of the date on which such Permitted European Borrower Debt is incurred or created and after giving effect to the incurrence of such Indebtedness on a Pro Forma Basis for the period of four Fiscal Quarters for which financial statements pursuant to Section 7.1 immediately preceding the date on which such Permitted European Borrower Debt is incurred or created, issue any preferred stock (i) no Event of Default or other preferred Equity Interests after Unmatured Event of Default would exist hereunder, (ii) the Effective Date.Credit Parties would be in compliance with Section 9.1 through Section 9.3, inclusive, and (iii) the European Borrower Total Leverage Ratio shall not be greater than 3.5 to 1.0 (which requirements shall be certified by the Credit Parties pursuant to an incurrence compliance certificate delivered by the Credit Parties to the Administrative Agent, not less than three (3) Business Days prior to the date on which such Permitted European Borrower Debt is incurred or created, which includes detailed computations of the requirements set forth in clauses (ii) and (iii) above);
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