Indebtedness of Restricted Subsidiaries. The Company will not permit any Restricted Subsidiaries, directly or indirectly, to create, incur, assume or suffer to exist any Indebtedness (which for purposes of this covenant shall include, without duplication, Guarantee Obligations) unless immediately thereafter the aggregate amount of (x) all Indebtedness of Restricted Subsidiaries (excluding (A) any Guarantee Obligations in respect of Indebtedness under the Credit Facility, and (B) Indebtedness owed to the Company or a Restricted Subsidiary, including any renewal or replacement of any of the obligations under clauses (A) or (B)), (y) the aggregate amount of indebtedness secured by Liens permitted under clause (11) of the definition of “Permitted Liens” contained in the Indenture and (z) the discounted present value of all net rentals payable under leases covered by Section 4.08 of the Indenture (and not expressly excluded therefrom) would not exceed the greater of $300 million or 15% of Consolidated Net Worth; provided, however, that, solely, for the purposes of this covenant, Indebtedness shall not include indebtedness incurred in connection with (a) overdraft or similar facilities related to settlement, clearing and related activities by a Restricted Subsidiary in the ordinary course of business consistent with past practice, (b) Purchased Receivables Financings, (c) to the extent the same constitutes Indebtedness, obligations in respect of net capital adjustments and/or earn-out arrangements pursuant to a purchase or acquisition otherwise permitted under the Indenture, (d) obligations under performance bonds, surety bonds and letter of credit obligations to provide security for worker’s compensation claims or other statutory obligations and obligations in respect of bank overdrafts not more than two days overdue, in each case, incurred in the ordinary course of business, (e) indebtedness owing to insurance companies to finance insurance premiums incurred in the ordinary course of business and (f) Guarantee Obligations with respect to Indebtedness and other liabilities otherwise permitted under the Indenture; and provided, further, that any Indebtedness of a Person (i) existing at the time such Person becomes a Restricted Subsidiary or is merged with or into the Company or a Restricted Subsidiary or other entity or (ii) assumed by the Company or a Subsidiary in connection with the acquisition of all or a portion of the business of such Person, shall not be deemed to be Indebtedness created, incurred, assumed or guaranteed by a Restricted Subsidiary or otherwise deemed to be Indebtedness of a Restricted Subsidiary for the purposes of this covenant. For purposes of this covenant only, “Indebtedness” shall not include any obligations of any Person under any Financing Lease if the obligations of the lessee in respect of such lease would not have been required to be capitalized on a balance sheet of the lessee under United States generally accepted accounting principles as in effect on the Issue Date.
Appears in 2 contracts
Samples: Registration Rights Agreement (Western Union CO), Registration Rights Agreement (Western Union CO)
Indebtedness of Restricted Subsidiaries. The Company Borrower will not permit any of its Restricted SubsidiariesSubsidiaries to, directly or indirectly, to create, incur, assume or suffer permit to exist any Indebtedness, except:
(a) Indebtedness (which for purposes if any) of this covenant shall include, without duplication, Guarantee Obligationsany Restricted Subsidiary created hereunder and under the other Loan Documents;
(i) unless immediately thereafter Indebtedness of any Restricted Subsidiary existing on the aggregate amount of date hereof and either (x) all Indebtedness set forth in Schedule 6.01 or (y) disclosed in the public reports of Restricted Subsidiaries the Borrower filed or furnished with the SEC and (excluding (Aii) any Guarantee Obligations Refinancing Indebtedness in respect of any Indebtedness under the Credit Facility, and incurred pursuant to this clause (Bb);
(c) Indebtedness of any Restricted Subsidiary owed to the Company Borrower or a any other Restricted Subsidiary;
(d) Guarantees by any Restricted Subsidiary of Indebtedness of any other Restricted Subsidiary; provided that the Indebtedness so Guaranteed is not prohibited by this Section 6.01;
(e) (i) Capital Lease Obligations of any Restricted Subsidiary, (ii) any Indebtedness of any Restricted Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including any renewal or replacement Indebtedness assumed by 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 (provided that (x) such Indebtedness is incurred prior to or within 270 days after such acquisition or the completion of the obligations under clauses (A) such construction or (B)), improvement and (y) the aggregate amount of indebtedness secured by Liens permitted under clause (11) of the definition of “Permitted Liens” contained in the Indenture and (z) the discounted present value of all net rentals payable under leases covered by Section 4.08 of the Indenture (and not expressly excluded therefrom) would such Indebtedness does not exceed the greater cost of $300 million acquiring, constructing or 15% of Consolidated Net Worth; providedimproving such fixed or capital assets, however, that, solely, for the purposes of this covenant, Indebtedness shall not include indebtedness incurred together with any accrued and unpaid interest and fees and expenses in connection therewith) and (iii) any Refinancing Indebtedness in respect of any Indebtedness incurred pursuant to this clause (e);
(i) Indebtedness of any Person that becomes a Restricted Subsidiary (or of any Person not previously a Subsidiary that is merged or consolidated with (a) overdraft or similar facilities related to settlement, clearing and related activities by into a Restricted Subsidiary in a transaction permitted hereunder) after the ordinary course of business consistent with past practicedate hereof, (b) Purchased Receivables Financings, (c) to the extent the same constitutes Indebtedness, obligations in respect of net capital adjustments and/or earn-out arrangements pursuant to a purchase or acquisition otherwise permitted under the Indenture, (d) obligations under performance bonds, surety bonds and letter of credit obligations to provide security for worker’s compensation claims or other statutory obligations and obligations in respect of bank overdrafts not more than two days overdue, in each case, incurred in the ordinary course of business, (e) indebtedness owing to insurance companies to finance insurance premiums incurred in the ordinary course of business and (f) Guarantee Obligations with respect to Indebtedness and other liabilities otherwise permitted under the Indenture; and provided, further, that any Indebtedness of a any Person that is assumed by any Restricted Subsidiary in connection with an acquisition of assets by such Restricted Subsidiary in an acquisition permitted hereunder; provided that (ix) existing such Indebtedness exists at the time such Person becomes a Restricted Subsidiary (or is so merged with or into the Company consolidated) or such assets are acquired and such Indebtedness is not created in contemplation of such Person becoming a Restricted Subsidiary (or other entity such merger or consolidation) or such assets being acquired and (y) the Borrower is in compliance on a Pro Forma Basis after giving effect to the assumption of such Indebtedness with the covenants contained in Sections 6.09 (if then applicable) and 6.10, recomputed as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements are required to have been delivered pursuant to Section 5.01(a) or 5.01(b), and (ii) assumed Refinancing Indebtedness in respect of Indebtedness incurred pursuant to this clause (f);
(g) Indebtedness of any Restricted Subsidiary 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 compensation or 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;
(h) Indebtedness of any Restricted 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;
(i) Indebtedness of any Restricted Subsidiary in respect of Hedging Agreements permitted by the Company Section 6.05;
(j) Indebtedness of any Restricted Subsidiary owed in respect of any overdrafts and related liabilities arising from treasury, depositary and cash management services or a Subsidiary in connection with any automated clearinghouse transfers of funds; provided that such Indebtedness shall be repaid in full within five Business Days of the Borrower or any Restricted Subsidiary having actual knowledge of the incurrence thereof;
(k) Indebtedness of any Restricted Subsidiary in the form of purchase price adjustments, earnouts, non-competition agreements or other arrangements representing acquisition consideration or deferred payments of a similar nature incurred in connection with any acquisition or other investment permitted hereunder;
(l) Indebtedness of any Restricted Subsidiary incurred in the form of reimbursement obligations in respect of letters of credit issued for the account of the Borrower or any Restricted Subsidiary in an aggregate amount not exceeding $50,000,000 at any time outstanding;
(m) Indebtedness of Restricted Subsidiaries that are Foreign Subsidiaries consisting of working capital facilities in an aggregate principal amount not exceeding $50,000,000 at any time outstanding;
(n) Guarantees by any Restricted Subsidiary of loans or advances to directors, officers or employees of the Borrower or any Restricted Subsidiary made in the ordinary course of business or otherwise as approved by the board of directors of the Borrower;
(o) Guarantees incurred by the Securitization Guarantors to the extent expressly permitted pursuant to an applicable Securitization Indenture;
(p) (i) other Indebtedness of Restricted Subsidiaries not otherwise permitted by this paragraph so long as (i) at the time of the incurrence of such Indebtedness, no Event of Default exists or would be caused thereby and (ii) the aggregate principal amount outstanding of such Indebtedness (together with the aggregate principal amount outstanding of Indebtedness of the Borrower covered by Liens permitted pursuant to Section 6.02(k)) does not exceed, in the aggregate, the greater of (x) $1,500,000,000 and (y) 50% of Consolidated EBITDA for the most recently ended four fiscal quarter period of the Borrower for which financial statements have been delivered pursuant to Section 5.01(a) or Section 5.01(b) and (ii) Refinancing Indebtedness in respect of any Indebtedness incurred pursuant to this clause (p); and
(i) other Indebtedness of Restricted Subsidiaries so long as (A) at the time of the incurrence of such Indebtedness, no Event of Default exists or would be caused thereby and (B) the aggregate principal amount outstanding of such Indebtedness incurred under this clause (q) does not exceed, in the aggregate, $5,541,600,000 and (ii) Refinancing Indebtedness in respect of any Indebtedness incurred pursuant to this clause (q). For purposes of determining compliance with this Section 6.01, if an item of Indebtedness meets the criteria of more than one of the types of Indebtedness described above, the Borrower, in its sole discretion, may classify such item of Indebtedness and in such event only be required to include the amount and type of such Indebtedness in one of such clauses, although the Borrower may divide and classify an item of Indebtedness in one or more of the types of Indebtedness and may later re-divide or reclassify all or a portion of such item of Indebtedness in any manner that complies with this Section 6.01. Notwithstanding anything herein or in any Schedule hereto to the business contrary, on and after the Third Amendment Effective Date, (i) the Specified Third Amendment Effective Date Indebtedness shall be deemed not to have been incurred under clause (b) of such Personthis Section 6.01, and (ii) any outstanding amount on the Third Amendment Effective Date with respect to the Specified Third Amendment Date Indebtedness shall not be deemed to be Indebtedness created, incurred, assumed or guaranteed by a Restricted Subsidiary or otherwise deemed to be Indebtedness of a Restricted Subsidiary for the purposes have been incurred under clause (q) of this covenant. For purposes of this covenant only, “Indebtedness” shall not include any obligations of any Person under any Financing Lease if the obligations of the lessee in respect of such lease would not have been required to be capitalized on a balance sheet of the lessee under United States generally accepted accounting principles as in effect on the Issue DateSection 6.01.
Appears in 2 contracts
Samples: Credit Agreement (Crown Castle International Corp), Credit Agreement (Crown Castle International Corp)
Indebtedness of Restricted Subsidiaries. The Company Borrower will not permit any Restricted Subsidiaries, directly or indirectly, Subsidiary to create, incur, assume or suffer permit to exist any Indebtedness or any Attributable Debt in respect of sale- leaseback transactions, except:
(which for purposes of this covenant shall include, without duplication, Guarantee Obligationsi) unless immediately thereafter Indebtedness created under the aggregate amount of Loan Documents;
(xii) all Indebtedness existing on the date hereof and set forth in Schedule 6.02.
(iii) Indebtedness of any Restricted Subsidiaries Subsidiary to the Borrower or any other Restricted Subsidiary; provided that Indebtedness of any Restricted Subsidiary that is not a Loan Party to the Borrower or any Subsidiary Loan Party shall be subject to Section 6.06;
(excluding iv) Guarantees by any Restricted Subsidiary of Indebtedness of any other Restricted Subsidiary; provided that Guarantees by any Subsidiary Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 6.06;
(v) Indebtedness of any Person that becomes a Restricted Subsidiary after the date hereof as a result of a Permitted Business Acquisition permitted under Section 6.06(e); provided that (A) any Guarantee Obligations in respect of such Indebtedness under the Credit Facility, and (B) Indebtedness owed to the Company or a Restricted Subsidiary, including any renewal or replacement of any of the obligations under clauses (A) or (B)), (y) the aggregate amount of indebtedness secured by Liens permitted under clause (11) of the definition of “Permitted Liens” contained in the Indenture and (z) the discounted present value of all net rentals payable under leases covered by Section 4.08 of the Indenture (and not expressly excluded therefrom) would not exceed the greater of $300 million or 15% of Consolidated Net Worth; provided, however, that, solely, for the purposes of this covenant, Indebtedness shall not include indebtedness incurred in connection with (a) overdraft or similar facilities related to settlement, clearing and related activities by a Restricted Subsidiary in the ordinary course of business consistent with past practice, (b) Purchased Receivables Financings, (c) to the extent the same constitutes Indebtedness, obligations in respect of net capital adjustments and/or earn-out arrangements pursuant to a purchase or acquisition otherwise permitted under the Indenture, (d) obligations under performance bonds, surety bonds and letter of credit obligations to provide security for worker’s compensation claims or other statutory obligations and obligations in respect of bank overdrafts not more than two days overdue, in each case, incurred in the ordinary course of business, (e) indebtedness owing to insurance companies to finance insurance premiums incurred in the ordinary course of business and (f) Guarantee Obligations with respect to Indebtedness and other liabilities otherwise permitted under the Indenture; and provided, further, that any Indebtedness of a Person (i) existing exists at the time such Person becomes a Restricted Subsidiary and is not created in contemplation of or is merged in connection with or into the Company or such Person becoming a Restricted Subsidiary or other entity or and (iiB) assumed by the Company or Borrower and the Restricted Subsidiaries are in compliance, on a Subsidiary in connection pro forma basis after giving effect to the incurrence of such Indebtedness, with the acquisition of all financial covenants contained in Sections 6.13, 6.14, 6.16, 6.17 and 6.18 to the extent then applicable; provided, further, that any such Indebtedness may be permitted by this clause (v) only until such time as such Person merges or a portion of consolidates with the business of such Person, shall not be deemed to be Indebtedness created, incurred, assumed Borrower or guaranteed by another Person that is a Restricted Subsidiary or otherwise deemed to be Indebtedness of a Restricted Subsidiary for the purposes of this covenant. For purposes of this covenant only, “Indebtedness” shall not include any obligations of any Person under any Financing Lease if the obligations of the lessee in respect of such lease would not have been required to be capitalized on a balance sheet of the lessee under United States generally accepted accounting principles as in effect on the Issue Datedate hereof;
(vi) surety, performance and other similar bonds incurred in the ordinary course of business not securing Indebtedness for borrowed money;
(vii) Capital Lease Obligations of Splitrock and its subsidiaries listed on Schedule 6.02 in an amount not to exceed the amount set forth on Schedule 6.02; and
(viii) other unsecured Indebtedness in a principal amount at any time outstanding not to exceed $10,000,000.
Appears in 1 contract
Samples: Credit Agreement (McLeodusa Inc)
Indebtedness of Restricted Subsidiaries. The Company Borrower will not permit any of its Restricted SubsidiariesSubsidiaries to, directly or indirectly, to create, incur, assume or suffer permit to exist any Indebtedness, except:
(a) Indebtedness (which for purposes if any) of this covenant shall include, without duplication, Guarantee Obligationsany Restricted Subsidiary created hereunder and under the other Loan Documents;
(i) unless immediately thereafter Indebtedness of any Restricted Subsidiary existing on the aggregate amount of date hereof and either (x) all Indebtedness set forth in Schedule 6.01 or (y) disclosed in the public reports of Restricted Subsidiaries the Borrower filed or furnished with the SEC and (excluding (Aii) any Guarantee Obligations Refinancing Indebtedness in respect of any Indebtedness under the Credit Facility, and incurred pursuant to this clause (Bb);
(c) Indebtedness of any Restricted Subsidiary owed to the Company Borrower or a any other Restricted Subsidiary;
(d) Guarantees by any Restricted Subsidiary of Indebtedness of any other Restricted Subsidiary; provided that the Indebtedness so Guaranteed is not prohibited by this Section 6.01;
(e) (i) Capital Lease Obligations of any Restricted Subsidiary, (ii) any Indebtedness of any Restricted Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including any renewal or replacement Indebtedness assumed by 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 (provided that (x) such Indebtedness is incurred prior to or within 270 days after such acquisition or the completion of the obligations under clauses (A) such construction or (B)), improvement and (y) the aggregate amount of indebtedness secured by Liens permitted under clause (11) of the definition of “Permitted Liens” contained in the Indenture and (z) the discounted present value of all net rentals payable under leases covered by Section 4.08 of the Indenture (and not expressly excluded therefrom) would such Indebtedness does not exceed the greater cost of $300 million acquiring, constructing or 15% of Consolidated Net Worth; providedimproving such fixed or capital assets, however, that, solely, for the purposes of this covenant, Indebtedness shall not include indebtedness incurred together with any accrued and unpaid interest and fees and expenses in connection therewith) and (iii) any Refinancing Indebtedness in respect of any Indebtedness incurred pursuant to this clause (e);
(i) Indebtedness of any Person that becomes a Restricted Subsidiary (or of any Person not previously a Subsidiary that is merged or consolidated with (a) overdraft or similar facilities related to settlement, clearing and related activities by into a Restricted Subsidiary in a transaction permitted hereunder) after the ordinary course of business consistent with past practicedate hereof, (b) Purchased Receivables Financings, (c) to the extent the same constitutes Indebtedness, obligations in respect of net capital adjustments and/or earn-out arrangements pursuant to a purchase or acquisition otherwise permitted under the Indenture, (d) obligations under performance bonds, surety bonds and letter of credit obligations to provide security for worker’s compensation claims or other statutory obligations and obligations in respect of bank overdrafts not more than two days overdue, in each case, incurred in the ordinary course of business, (e) indebtedness owing to insurance companies to finance insurance premiums incurred in the ordinary course of business and (f) Guarantee Obligations with respect to Indebtedness and other liabilities otherwise permitted under the Indenture; and provided, further, that any Indebtedness of a any Person that is assumed by any Restricted Subsidiary in connection with an acquisition of assets by such Restricted Subsidiary in an acquisition permitted hereunder; provided that (ix) existing such Indebtedness exists at the time such Person becomes a Restricted Subsidiary (or is so merged with or into the Company consolidated) or such assets are acquired and such Indebtedness is not created in contemplation of such Person becoming a Restricted Subsidiary (or other entity such merger or consolidation) or such assets being acquired and (y) the Borrower is in compliance on a Pro Forma Basis after giving effect to the assumption of such Indebtedness with the covenants contained in Sections 6.09 (if then applicable) and 6.10, recomputed as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements are required to have been delivered pursuant to Section 5.01(a) or 5.01(b), and (ii) assumed Refinancing Indebtedness in respect of Indebtedness incurred pursuant to this clause (f);
(g) Indebtedness of any Restricted Subsidiary 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 compensation or 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;
(h) Indebtedness of any Restricted 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;
(i) Indebtedness of any Restricted Subsidiary in respect of Hedging Agreements permitted by the Company Section 6.05;
(j) Indebtedness of any Restricted Subsidiary owed in respect of any overdrafts and related liabilities arising from treasury, depositary and cash management services or a Subsidiary in connection with any automated clearinghouse transfers of funds; provided that such Indebtedness shall be repaid in full within five Business Days of the Borrower or any Restricted Subsidiary having actual knowledge of the incurrence thereof;
(k) Indebtedness of any Restricted Subsidiary in the form of purchase price adjustments, earnouts, non-competition agreements or other arrangements representing acquisition consideration or deferred payments of a similar nature incurred in connection with any acquisition or other investment permitted hereunder;
(l) Indebtedness of any Restricted Subsidiary incurred in the form of reimbursement obligations in respect of letters of credit issued for the account of the Borrower or any Restricted Subsidiary in an aggregate amount not exceeding $50,000,000 at any time outstanding;
(m) Indebtedness of Restricted Subsidiaries that are Foreign Subsidiaries consisting of working capital facilities in an aggregate principal amount not exceeding $50,000,000 at any time outstanding;
(n) Guarantees by any Restricted Subsidiary of loans or advances to directors, officers or employees of the Borrower or any Restricted Subsidiary made in the ordinary course of business or otherwise as approved by the board of directors of the Borrower;
(o) Guarantees incurred by the Securitization Guarantors to the extent expressly permitted pursuant to an applicable Securitization Indenture; and
(p) (i) other Indebtedness of Restricted Subsidiaries not otherwise permitted by this paragraph so long as (i) at the time of the incurrence of such Indebtedness, no Event of Default exists or would be caused thereby and (ii) the aggregate principal amount outstanding of such Indebtedness (together with the aggregate principal amount outstanding of Indebtedness of the Borrower covered by Liens permitted pursuant to Section 6.02(k)) does not exceed, in the aggregate, the greater of (x) $1,500,000,000 and (y) 50% of Consolidated EBITDA for the most recently ended four fiscal quarter period of the Borrower for which financial statements have been delivered pursuant to Section 5.01(a) or Section 5.01(b) and (ii) Refinancing Indebtedness in respect of any Indebtedness incurred pursuant to this clause (p). For purposes of determining compliance with this Section 6.01, if an item of Indebtedness meets the criteria of more than one of the types of Indebtedness described above, the Borrower, in its sole discretion, may classify such item of Indebtedness and in such event only be required to include the amount and type of such Indebtedness in one of such clauses, although the Borrower may divide and classify an item of Indebtedness in one or more of the types of Indebtedness and may later re-divide or reclassify all or a portion of the business such item of such Person, shall not be deemed to be Indebtedness created, incurred, assumed or guaranteed by a Restricted Subsidiary or otherwise deemed to be Indebtedness of a Restricted Subsidiary for the purposes of in any manner that complies with this covenant. For purposes of this covenant only, “Indebtedness” shall not include any obligations of any Person under any Financing Lease if the obligations of the lessee in respect of such lease would not have been required to be capitalized on a balance sheet of the lessee under United States generally accepted accounting principles as in effect on the Issue DateSection 6.01.
Appears in 1 contract
Indebtedness of Restricted Subsidiaries. The Company will not permit permit: Consolidated Indebtedness to exceed 58% of Consolidated Total Capitalization at any time; and Any Restricted Subsidiaries, directly or indirectly, Subsidiary to create, incurassume, assume guaranty or suffer to exist otherwise incur any Indebtedness (which for purposes of this covenant shall include, without duplication, Guarantee Obligations) unless immediately thereafter the aggregate amount of (x) all Indebtedness of Restricted Subsidiaries (excluding (A) any Guarantee Obligations in respect of Indebtedness under the Credit Facility, and (B) other than: Indebtedness owed to the Company or another Restricted Subsidiary; Indebtedness of a Restricted Subsidiary, including any renewal or replacement of any Subsidiary outstanding at the date of the obligations under clauses (A) acquisition of such Restricted Subsidiary; provided that such Indebtedness was not incurred in contemplation of such Subsidiary becoming a Restricted Subsidiary and immediately after giving effect thereto, no Default or (B)), (y) Event of Default would exist; and other Indebtedness; provided that after giving effect thereto and to the aggregate amount of indebtedness secured by Liens permitted under clause (11) application of the definition of “Permitted Liens” contained in the Indenture and (z) the discounted present value of all net rentals payable under leases covered by Section 4.08 of the Indenture (and not expressly excluded proceeds therefrom) , Priority Debt outstanding would not exceed the greater of $300 million or 1520% of Consolidated Net Worth; provided, however, that, solely, for the purposes of this covenant, Indebtedness shall not include indebtedness incurred in connection with (a) overdraft or similar facilities related to settlement, clearing and related activities by a Restricted Subsidiary in the ordinary course of business consistent with past practice, (b) Purchased Receivables Financings, (c) to the extent the same constitutes Indebtedness, obligations in respect of net capital adjustments and/or earn-out arrangements pursuant to a purchase or acquisition otherwise permitted under the Indenture, (d) obligations under performance bonds, surety bonds and letter of credit obligations to provide security for worker’s compensation claims or other statutory obligations and obligations in respect of bank overdrafts not more than two days overdue, in each case, incurred in the ordinary course of business, (e) indebtedness owing to insurance companies to finance insurance premiums incurred in the ordinary course of business and (f) Guarantee Obligations with respect to Indebtedness and other liabilities otherwise permitted under the Indenture; and provided, further, that any Indebtedness of a Person (i) existing at the time such Person becomes a Restricted Subsidiary or is merged with or into the Company or a Restricted Subsidiary or other entity or (ii) assumed by the Company or a Subsidiary in connection with the acquisition of all or a portion of the business of such Person, shall not be deemed to be Indebtedness created, incurred, assumed or guaranteed by a Restricted Subsidiary or otherwise deemed to be Indebtedness of a Restricted Subsidiary for the purposes of this covenant. For purposes of this covenant onlySection 10.1, “Indebtedness” shall not include any obligations of any Person under becoming a Restricted Subsidiary shall be deemed at the time of becoming a Restricted Subsidiary to have incurred all of its then outstanding Indebtedness and any Financing Lease if Person extending, renewing or refunding any Indebtedness shall be deemed to have incurred such Indebtedness at the obligations time of such extension, renewal or refunding. So long as CIT Group/Business Credit, Inc. holds any Liens on any of the lessee in respect of such lease would not have been required to be capitalized on a balance sheet assets or property of the lessee Company or any Restricted Subsidiary, the Company will not, and will not permit any Restricted Subsidiary to, incur or assume any Indebtedness owing to CIT Group/Business Credit, Inc. (other than Indebtedness not exceeding $6.2 million in the aggregate arising under United States generally accepted accounting principles as in effect on the Issue Dateoutstanding letters of credit).
Appears in 1 contract
Indebtedness of Restricted Subsidiaries. The Company Borrower will not permit any Restricted Subsidiaries, directly or indirectly, Subsidiary to create, incur, assume or suffer permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(which for purposes of this covenant shall include, without duplication, Guarantee Obligationsii) unless immediately thereafter Indebtedness existing on the aggregate amount of date hereof and set forth in Schedule 6.02.
(xiii) all Indebtedness of any Restricted Subsidiaries Subsidiary to the Borrower or any other Restricted Subsidiary; provided that Indebtedness of any Restricted Subsidiary that is not a Loan Party to the Borrower or any Subsidiary Loan Party shall be subject to Section 6.06;
(excluding iv) Guarantees by any Restricted Subsidiary of Indebtedness of any other Restricted Subsidiary; provided that Guarantees by any Subsidiary Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 6.06;
(v) Indebtedness of any Person (including without limitation Indebtedness in respect of letters of credit) that becomes a Restricted Subsidiary after the date hereof; provided that (A) any Guarantee Obligations in respect of such Indebtedness under the Credit Facility, and (B) Indebtedness owed to the Company or a Restricted Subsidiary, including any renewal or replacement of any of the obligations under clauses (A) or (B)), (y) the aggregate amount of indebtedness secured by Liens permitted under clause (11) of the definition of “Permitted Liens” contained in the Indenture and (z) the discounted present value of all net rentals payable under leases covered by Section 4.08 of the Indenture (and not expressly excluded therefrom) would not exceed the greater of $300 million or 15% of Consolidated Net Worth; provided, however, that, solely, for the purposes of this covenant, Indebtedness shall not include indebtedness incurred in connection with (a) overdraft or similar facilities related to settlement, clearing and related activities by a Restricted Subsidiary in the ordinary course of business consistent with past practice, (b) Purchased Receivables Financings, (c) to the extent the same constitutes Indebtedness, obligations in respect of net capital adjustments and/or earn-out arrangements pursuant to a purchase or acquisition otherwise permitted under the Indenture, (d) obligations under performance bonds, surety bonds and letter of credit obligations to provide security for worker’s compensation claims or other statutory obligations and obligations in respect of bank overdrafts not more than two days overdue, in each case, incurred in the ordinary course of business, (e) indebtedness owing to insurance companies to finance insurance premiums incurred in the ordinary course of business and (f) Guarantee Obligations with respect to Indebtedness and other liabilities otherwise permitted under the Indenture; and provided, further, that any Indebtedness of a Person (i) existing exists at the time such Person becomes a Restricted Subsidiary and is not created in contemplation of or is merged in connection with or into the Company or such Person becoming a Restricted Subsidiary and (B) the Borrower and the Restricted Subsidiaries are in compliance, on a pro forma basis after giving effect to the incurrence of such Indebtedness, with the Financial Covenants, to the extent then applicable; provided further that any such Indebtedness may be permitted by this clause (v) only until such time as such Person merges or consolidates with the Borrower or another Person that is a Restricted Subsidiary on the date hereof;
(vi) surety, performance and other entity similar bonds incurred in the ordinary course of business not securing Indebtedness for borrowed money or Capital Lease Obligations;
(iivii) assumed other unsecured Indebtedness in a principal amount at any time outstanding not to exceed the lesser of (A) $50,000,000 and (B) the maximum amount then permitted to be incurred by the Company Indentures; provided that, in any event, the aggregate principal amount of unsecured Indebtedness of Foreign Subsidiaries outstanding in reliance on this Section 6.02(vii) shall not at any time exceed $20,000,000;
(viii) Indebtedness of any Restricted Subsidiary incurred to finance the acquisition, construction, installation, development or a Subsidiary improvement of any fixed or capital assets, including Capital Lease Obligations, Attributable Debt and any Indebtedness assumed in connection with the acquisition of all 46 any such assets or secured by a Lien on any such assets prior to the acquisition thereof; provided that (A) such Indebtedness or Attributable Debt is incurred prior to or within 180 days after such acquisition or the completion of such construction, installation, development or improvement, (B) the Borrower and the Restricted Subsidiaries are in compliance, on a pro forma basis after giving effect to the incurrence of such Indebtedness, with the Financial Covenants, to the extent then applicable and (C) the amount of such Indebtedness shall not exceed the cost of such acquisition, construction, installation, development or improvement;
(ix) Indebtedness incurred to refinance any Indebtedness permitted under clauses (ii) and (viii) of this Section 6.02; provided that (a) such refinancing Indebtedness (i) shall not have a greater outstanding principal amount (except to the extent necessary to pay fees, expenses, underwriting discounts and prepayment premiums in connection therewith), an earlier maturity date or a portion of decreased weighted average life than the business Indebtedness refinanced and (ii) shall be subordinated to the Indebtedness created under the Loan Documents to at least the extent, if any, of, and shall otherwise be issued on terms no less favorable in any material respect to the Lenders than, the Indebtedness refinanced, (b) the proceeds of such PersonIndebtedness shall be used solely to repay the Indebtedness refinanced thereby and fees, shall expenses, underwriting discounts and prepayment premiums in connection therewith and (c) such refinancing Indebtedness is not be deemed G uaranteed by the Borrower (except, in the case of refinancing of Indebtedness permitted by clause (ii) of this Section 6.02, to the extent that such Indebtedness was originally so Guaranteed and permitted to be Indebtedness created, incurred, assumed or guaranteed by a Restricted Subsidiary or otherwise deemed so Guaranteed pursuant to be Section 6.01); and
(x) Indebtedness of a Restricted Subsidiary for Foreign Subsidiaries as account parties in respect of foreign currency standby letters of credit incurred to secure obligations of Foreign Subsidiaries, provided that the purposes aggregate amount thereof does not exceed $60,000,000 (including the dollar equivalent of this covenantforeign currency obligations) at any time outstanding. For purposes of determining any particular amount of Indebtedness under this covenant onlySection 6.02, “Indebtedness” shall not include any obligations in the event an item of any Person under any Financing Lease if Indebtedness meets the obligations criteria of more than one of the lessee types of Indebtedness described in respect the above clauses, the Borrower, in its sole discretion, may classify such item of Indebtedness and only be required to include the amount and type of such lease would not have been required to be capitalized on a balance sheet Indebtedness in one of the lessee under United States generally accepted accounting principles as in effect on the Issue Datesuch clauses.
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Indebtedness of Restricted Subsidiaries. The Company Borrower will ---------------------------------------- not permit any Restricted Subsidiaries, directly or indirectly, Subsidiary to create, incur, assume or suffer permit to exist any Indebtedness or any Attributable Debt in respect of sale-leaseback transactions, except:
(which for purposes of this covenant shall include, without duplication, Guarantee Obligationsi) unless immediately thereafter Indebtedness created under the aggregate amount of Loan Documents;
(xii) all Indebtedness existing on the date hereof and set forth in Schedule 6.02.
(iii) Indebtedness of any Restricted Subsidiaries Subsidiary to the Borrower or any other Restricted Subsidiary; provided that Indebtedness of any -------- Restricted Subsidiary that is not a Loan Party to the Borrower or any Subsidiary Loan Party shall be subject to Section 6.06;
(excluding iv) Guarantees by any Restricted Subsidiary of Indebtedness of any other Restricted Subsidiary; provided that Guarantees by any Subsidiary -------- Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 6.06;
(v) Indebtedness of any Person that becomes a Restricted Subsidiary after the date hereof; provided that (A) any Guarantee Obligations such Indebtedness exists at the -------- time such Person becomes a Restricted Subsidiary and is not created in respect contemplation of Indebtedness under the Credit Facility, or in connection with such Person becoming a Restricted Subsidiary and (B) Indebtedness owed the Borrower and the Restricted Subsidiaries are in compliance, on a pro forma basis after giving effect to the Company or a Restricted Subsidiaryincurrence of such Indebtedness, including any renewal or replacement of any of with the obligations under clauses (A) or (B)), (y) the aggregate amount of indebtedness secured by Liens permitted under clause (11) of the definition of “Permitted Liens” financial covenants contained in Sections 6.13, 6.14, 6.15, 6.16, 6.17 and 6.18 to the Indenture and (z) the discounted present value of all net rentals payable under leases covered by Section 4.08 of the Indenture (and not expressly excluded therefrom) would not exceed the greater of $300 million or 15% of Consolidated Net Worthextent then applicable; provided, however-------- further, that, solely, for that any such Indebtedness may be permitted by this clause (v) ------- only until such time as such Person merges or consolidates with the purposes of this covenant, Indebtedness shall not include indebtedness incurred in connection with (a) overdraft Borrower or similar facilities related to settlement, clearing and related activities by another Person that is a Restricted Subsidiary in on the ordinary course of business consistent with past practicedate hereof;
(vi) surety, (b) Purchased Receivables Financings, (c) to the extent the same constitutes Indebtedness, obligations in respect of net capital adjustments and/or earn-out arrangements pursuant to a purchase or acquisition otherwise permitted under the Indenture, (d) obligations under performance bonds, surety and other similar bonds and letter of credit obligations to provide security for worker’s compensation claims or other statutory obligations and obligations in respect of bank overdrafts not more than two days overdue, in each case, incurred in the ordinary course of business, (e) indebtedness owing to insurance companies to finance insurance premiums incurred in the ordinary course of business not securing Indebtedness for borrowed money;
(vii) Capital Lease Obligations of Splitrock and its subsidiaries in an amount that, together with any outstanding Capital Lease Obligations of Splitrock and its subsidiaries listed on Schedule 6.02, does not exceed $45,000,000 at any time outstanding; and
(viii) other unsecured Indebtedness in a principal amount at any time outstanding not to exceed the lesser of (A) $10,000,000 and (fB) Guarantee Obligations with respect the maximum amount then permitted to Indebtedness and other liabilities otherwise permitted under the Indenture; and provided, further, that any Indebtedness of a Person (i) existing at the time such Person becomes a Restricted Subsidiary or is merged with or into the Company or a Restricted Subsidiary or other entity or (ii) assumed be incurred by the Company or a Subsidiary in connection with the acquisition of all or a portion of the business of such Person, shall not be deemed to be Indebtedness created, incurred, assumed or guaranteed by a Restricted Subsidiary or otherwise deemed to be Indebtedness of a Restricted Subsidiary for the purposes of this covenant. For purposes of this covenant only, “Indebtedness” shall not include any obligations of any Person under any Financing Lease if the obligations of the lessee in respect of such lease would not have been required to be capitalized on a balance sheet of the lessee under United States generally accepted accounting principles as in effect on the Issue DateIndentures.
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Samples: Credit Agreement (McLeodusa Inc)
Indebtedness of Restricted Subsidiaries. The Company will Borrower shall not permit any Restricted Subsidiaries, directly or indirectly, Subsidiary to create, incur, assume or suffer to exist any Indebtedness Indebtedness, except:
(which for purposes of this covenant shall include, without duplication, Guarantee Obligations) unless immediately thereafter the aggregate amount of (x) all Indebtedness of Restricted Subsidiaries (excluding (A) any Guarantee Obligations in respect of Indebtedness under the Credit Facility, and (Ba) Indebtedness owed to the Company Borrower or a to another Restricted Subsidiary, including any renewal or replacement of any of the ;
(b) obligations under clauses Swap Contracts, provided that such obligations are (Aor were) or (B)), (y) the aggregate amount of indebtedness secured entered into by Liens permitted under clause (11) of the definition of “Permitted Liens” contained in the Indenture and (z) the discounted present value of all net rentals payable under leases covered by Section 4.08 of the Indenture (and not expressly excluded therefrom) would not exceed the greater of $300 million or 15% of Consolidated Net Worth; provided, however, that, solely, for the purposes of this covenant, Indebtedness shall not include indebtedness incurred in connection with (a) overdraft or similar facilities related to settlement, clearing and related activities by a such Restricted Subsidiary in the ordinary course of business consistent for the purpose of directly mitigating risks associated with past practiceliabilities, (b) Purchased Receivables Financingscommitments, investments, assets, or property held or reasonably anticipated by such Restricted Subsidiary, or changes in the value of securities issued by such Restricted Subsidiary, and not for purposes of speculation or taking a “market view;”
(c) to Indebtedness secured by Liens permitted by Section 7.01(s), provided that the extent aggregate outstanding principal amount of such Indebtedness does not at any time exceed the same constitutes Indebtedness, obligations in respect of net capital adjustments and/or earn-out arrangements pursuant to a purchase or acquisition otherwise amount permitted under the Indenture, by such Section;
(d) obligations under performance bonds, surety bonds and letter of credit obligations to provide security for worker’s compensation claims or other statutory obligations and obligations in respect of bank overdrafts not more than two days overdue, in each case, incurred in the ordinary course of business, (e) indebtedness owing to insurance companies to finance insurance premiums incurred in the ordinary course of business and (f) Guarantee Obligations with respect to Indebtedness and other liabilities otherwise permitted under the Indenture; and provided, further, that any Indebtedness of a Person (i) existing at the time such Person becomes a of acquisition of any new Restricted Subsidiary by the Borrower or is merged with or into the Company or by a then-existing Restricted Subsidiary or of the Borrower; provided that such Indebtedness was not incurred in contemplation of, and was in existence prior to, such acquisition and that neither the Borrower nor any other entity or Restricted Subsidiary of the Borrower has any liability under such Indebtedness (ii) assumed by the Company or other than a Subsidiary in connection with the acquisition of all or a portion of the business of such Person, shall not be deemed to be Indebtedness created, incurred, assumed or guaranteed by a Restricted Subsidiary or otherwise deemed to be Indebtedness of a Restricted Subsidiary for the purposes of this covenant. For purposes of this covenant only, “Indebtedness” shall not include any obligations of any Person under any Financing Lease if the obligations so acquired); and
(e) Indebtedness of Restricted Subsidiaries of the lessee Borrower (excluding Indebtedness otherwise permitted in respect clauses (a) through (d) of such lease would this Section 7.03) which does not have been required exceed at any time an aggregate principal amount outstanding equal to be capitalized on a balance sheet fifteen percent (15%) of the lessee under United States generally accepted accounting principles as in effect on the Issue DateConsolidated Net Tangible Assets.
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