Debt. Not, and not permit any other Loan Party to, create, incur, assume or suffer to exist any Debt, except: (a) Obligations under this Agreement and the other Loan Documents; (b) Debt incurred or assumed after the Closing Date which is secured by Liens permitted by Section 11.2(d), and extensions, renewals and refinancings thereof; provided, that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters; (c) Debt of the Parent or Company to any Wholly-Owned Subsidiary or Debt of any Wholly-Owned Subsidiary to the Company, the Parent or another Wholly-Owned Subsidiary; provided that (i) the sum of (A) the aggregate principal amount outstanding of any such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been pledged to the Administrative Agent in accordance with the terms of the Guaranty and Pledge Agreement; (d) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation; (e) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased; (f) Suretyship Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions permitted under Section 11.4; (g) up to $2,000,000 in the aggregate of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitions; (h) convertible Debt issued by Parent, so long as (i) the stated maturity of such Debt shall be a date not earlier than six months after the stated maturity date of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv)); (i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations; (j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) of Section 11.10); and (k) other Debt, in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,000.
Appears in 2 contracts
Sources: Credit Agreement (Lecg Corp), Credit Agreement (Lecg Corp)
Debt. NotThe Borrower will not, and will not permit any other Loan Party Restricted Subsidiary to, incur, create, incur, assume or suffer to exist any DebtDebt and the Borrower will not permit any Restricted Subsidiary to issue any Preferred Stock, except:
(a) Obligations Indebtedness created hereunder or under this Agreement and the other Loan Documents;.
(b) Guarantees by the Borrower or any Guarantor of Debt incurred of the Borrower or assumed after any Guarantor, as the Closing Date which is secured by Liens permitted by Section 11.2(d)case may be, and extensions, renewals and refinancings thereofIncurred in accordance with the provisions of this Agreement; provided, provided that in the aggregate amount of all event that such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as is a Subordinated Obligation of the previous four Fiscal Quarters;Borrower or a Guarantor, the related Guarantee shall be subordinated in right of payment to the Indebtedness arising under the Loan Documents to at least the same extent as such Debt.
(c) Debt of the Parent or Company Borrower owing to and held by any Wholly-Owned Restricted Subsidiary or Debt of a Restricted Subsidiary owing to and held by the Borrower or any Wholly-Owned Restricted Subsidiary or between Restricted Subsidiaries to the Company, the Parent or another Wholly-Owned Subsidiaryextent permitted by Section 9.04; provided that any subsequent issuance or transfer of Capital Stock or any other event (i) including the sum of (A) the aggregate principal amount outstanding sale or other transfer of any such Debt owed by to a foreign Subsidiary and (BPerson other than the Borrower or a Restricted Subsidiary) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding that results in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt being owed by to a foreign Person other than the Borrower or a Restricted Subsidiary shall be evidenced deemed to constitute an Incurrence of such Debt by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been pledged to the Administrative Agent in accordance with the terms of the Guaranty and Pledge Agreement;Borrower or such Restricted Subsidiary.
(d) Hedging Obligations incurred The Second Lien Notes and any Guarantees thereof and any Permitted Refinancing Debt in favor of a Lender or an Affiliate respect thereof; provided that such Debt and the holders thereof for bona fide hedging purposes shall be at all times subject to and not for speculation;in compliance with the Intercreditor Agreement.
(e) Debt described of a Person that becomes a Restricted Subsidiary or is acquired by or merged into the Borrower or a Restricted Subsidiary in accordance with the provisions of this Agreement outstanding on Schedule 11.1 the date on which such Person became a Restricted Subsidiary or was acquired by or merged into the Borrower or a Restricted Subsidiary, other than Debt Incurred (i) to provide all or any portion of the funds utilized to consummate the transaction (or related series of transactions) pursuant to which such Person became a Restricted Subsidiary or was otherwise acquired by or merged into the Borrower or a Restricted Subsidiary or (ii) otherwise in connection with, or in contemplation of, such acquisition, so long as at the time such Person becomes a Restricted Subsidiary or is acquired by or merged into the Borrower or a Restricted Subsidiary and after giving effect to the Incurrence of such Debt pursuant to this paragraph (e), the Borrower would have been able to Incur at least $1.00 of additional Debt pursuant to paragraph (n) below.
(f) Debt Incurred by the Borrower or any Restricted Subsidiary pursuant to Capitalized Lease Obligations, Synthetic Lease Obligations, mortgage financings and purchase money obligations, in each case Incurred to finance all or any portion of the purchase price or cost of construction or improvements or carrying costs of property used in the business of the Borrower or such Restricted Subsidiary, and Permitted Refinancing Debt in respect thereof, in an aggregate principal amount not to exceed $60,000,000 at any one time outstanding.
(g) Permitted Acquisition Debt.
(h) Debt in the form of workers’ compensation claims, payment obligations in respect of health or other types of social security benefits, unemployment or other insurance or self-insurance obligations, reclamation, statutory obligations, bankers’ acceptances, bid, appeal, reimbursement, performance, surety and similar bonds and completion Guarantees provided by the Borrower or a Restricted Subsidiary in the ordinary course of business and any extensionGuarantees or letters of credit functioning as or supporting any of the foregoing bonds or obligations or other similar obligations in the ordinary course of business and consistent with past practice (in each case, renewal other than for an obligation for money borrowed).
(i) Debt, including Permitted Refinancing Debt, Incurred by a Foreign Subsidiary in an aggregate principal amount not to exceed an amount equal to 10.0% of such Foreign Subsidiary’s Adjusted Consolidated Net Tangible Assets at any time outstanding.
(j) Capital Stock (other than Disqualified Stock) of the Borrower or any of the Guarantors.
(k) Cash-Pay Preferred issued by the Borrower so long as at the time of and after giving effect to the issuance of such Cash-Pay Preferred, the Borrower would have been able to Incur at least $1.00 of additional Debt pursuant to paragraph (n) below.
(l) Debt Incurred after the Closing Date by a wholly-owned Foreign Subsidiary pursuant to vendor financings for the construction of the ATP Octabuoy and related assets and an unsecured Guarantee thereof by the Borrower not to exceed $250,000,000 in the aggregate at any time outstanding; provided, however, that in the event that such Foreign Subsidiary shall cease to be a Wholly-Owned Subsidiary, any such Guarantee of such Debt by the Borrower shall be deemed to be an Incurrence of Debt by the Borrower that is not permitted pursuant to this paragraph (l).
(m) Other Debt in an aggregate principal amount outstanding not to exceed the greater of (i) $50,000,000 and (ii) 1.25% of the Borrower’s Adjusted Consolidated Net Tangible Assets, determined on a pro forma basis after giving effect to the Incurrence of such Debt and the application of the proceeds thereof.
(n) Other Debt of the Borrower or any Guarantor and the issuance of any Preferred Stock by any Restricted Subsidiary if, at the time of and after giving effect to the Incurrence of such Debt or the issuance of such Preferred Stock, the Consolidated Coverage Ratio is at least 2.50 to 1.00. For purposes of determining compliance with, and the outstanding principal amount of any particular Debt Incurred pursuant to and in compliance with, this Section 9.02:
(i) in the event an item of that Debt meets the criteria of more than one of the types of Debt described in the first and second paragraphs of this Section 9.02, the Borrower, in its sole discretion, will classify such item of Debt on the date of Incurrence and, subject to clause (ii) below may later classify, reclassify or redivide all or a portion of such item of Debt, in any manner that complies with this Section 9.02;
(ii) Guarantees of, or obligations in respect of letters of credit supporting, Debt which is otherwise included in the determination of a particular amount of Debt shall not be included;
(iii) if obligations in respect of letters of credit are Incurred pursuant to a credit facility and are being treated as Incurred pursuant to clause (i) of the second paragraph above and the letters of credit relate to other Debt, then such other Debt shall not be included;
(iv) the principal amount of any Disqualified Stock of the Borrower or a Restricted Subsidiary, or Preferred Stock of a Restricted Subsidiary that is not a Subsidiary Guarantor, will be equal to the greater of the maximum mandatory redemption or repurchase price (not including, in either case, any redemption or repurchase premium) or the liquidation preference thereof;
(v) Debt permitted by this Section 9.02 need not be permitted solely by reference to one provision permitting such Debt but may be permitted in part by one such provision and in part by one or more other provisions of this Section 9.02 permitting such Debt; and
(vi) the amount of Debt issued at a price that is less than the principal amount thereof will be equal to the amount of the liability in respect thereof determined in accordance with GAAP. Accrual of interest, accrual of dividends, the amortization of debt discount or the accretion of accreted value, the payment of interest in the form of additional Debt, the payment of dividends in the form of additional shares of Preferred Stock or Disqualified Stock and unrealized losses or charges in respect of Hedging Obligations (including those resulting from the application of Statement of Financial Accounting Standard No. 133) will not be deemed to be an Incurrence of Debt for purposes of this Section 9.02. The amount of any Debt outstanding as of any date shall be (i) the accreted value thereof in the case of any Debt issued with original issue discount and (ii) the principal amount or liquidation preference thereof, together with any interest thereon that is more than 30 days past due, in the case of any other Debt. If at any time an Unrestricted Subsidiary becomes a Restricted Subsidiary, any Debt of such Subsidiary shall be deemed to be Incurred by a Restricted Subsidiary as of such date (and, if such Debt is not permitted to be Incurred as of such date under this Section 9.02, the Borrower shall be in Default of this Section 9.02). For purposes of determining compliance with any U.S. dollar-denominated restriction on the Incurrence of Debt, the U.S. dollar-equivalent principal amount of Debt denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Debt was Incurred, in the case of term Debt, or first committed, in the case of revolving credit Debt; provided that if such Debt is Incurred to refinance other Debt denominated in a foreign currency, and such refinancing thereof would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount thereof is of such refinancing Debt does not increased;
(f) Suretyship Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions permitted under Section 11.4;
(g) up to $2,000,000 in exceed the aggregate of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitions;
(h) convertible Debt issued by Parent, so long as (i) the stated maturity principal amount of such Debt being refinanced. Notwithstanding any other provision of this Section 9.02, the maximum amount of Debt that the Borrower may Incur pursuant to this Section 9.02 shall not be deemed to be exceeded solely as a result of fluctuations in the exchange rate of currencies. The principal amount of any Debt Incurred to refinance other Debt, if Incurred in a different currency from the Debt being refinanced, shall be a date not earlier than six months after calculated based on the stated maturity date of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect currency exchange rate applicable to the intended use of proceeds of currencies in which such convertible Debt, with evidence Refinancing Debt is denominated that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 effect on the date of measurement, and such refinancing. This Agreement will not treat (iv1) the restrictive covenants and events of default relating unsecured Debt as subordinated or junior to such secured Debt are generally no more restrictive than those set forth in the Credit Agreement merely because it is unsecured or (2) senior Debt as subordinated or junior to any other senior Debt merely because it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants a junior priority with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv));
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) of Section 11.10); and
(k) other Debt, in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,000same collateral.
Appears in 2 contracts
Sources: Amendment and Restatement and Incremental Loan Assumption Agreement (Atp Oil & Gas Corp), Credit Agreement (Atp Oil & Gas Corp)
Debt. Not, and not permit None of the Borrower or any other Loan Party to, create, of its Consolidated Subsidiaries will incur, create or assume or suffer to exist any Debt, except:
(a) the Notes or other Obligations under this Agreement and or any guaranty of or suretyship arrangement for the Notes or other Loan DocumentsObligations;
(b) Debt incurred or assumed after of the Closing Date which is secured by Liens permitted by Section 11.2(d)Borrower disclosed in Schedule 9.01, and extensions, any renewals and refinancings or extensions (but not increases) thereof; provided, that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters;
(c) Debt accounts payable (for the deferred purchase price of Property or services) from time to time incurred in the Parent ordinary course of business which, if greater than 90 days past the invoice or Company to any Wholly-Owned Subsidiary or Debt of any Wholly-Owned Subsidiary to the Companybilling date, the Parent or another Wholly-Owned Subsidiary; provided that (i) the sum of (A) the aggregate principal amount outstanding of any such Debt owed are being contested in good faith by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) appropriate proceedings if reserves adequate under GAAP shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has have been pledged to the Administrative Agent in accordance with the terms of the Guaranty and Pledge Agreementestablished therefor;
(d) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation[Reserved];
(e) Debt described on Schedule 11.1 and associated with bonds or surety obligations pursuant to Governmental Requirements in connection with the operation of any extension, renewal or refinancing thereof so long as the principal amount thereof is not increasedPipeline Properties;
(f) Suretyship Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions Debt under Hedging Agreements permitted under Section 11.4 and purchasers in connection with Dispositions permitted under Section 11.49.07;
(g) up to $2,000,000 in the aggregate of Intercompany Debt, provided, that any such Intercompany Debt is (i) Acquired Debt assumed if in Acquisitions permitted under Section 11.4 excess of $5,000,000, evidenced by an Intercompany Note which has been pledged to secure the Obligations and is in the possession of the Administrative Agent, and (ii) in the case of any Intercompany Debt secured by property acquired by owing to an Obligor from a Loan Party Consolidated Subsidiary (other than an Obligor), subordinated to the Obligations upon terms and assumed by such Loan Party in transactions which do not constitute Acquisitionsconditions satisfactory to the Administrative Agent;
(h) convertible Debt issued by Parent, so long as of the Borrower to the General Partner to enable the General Partner to pay general and administrative costs and expenses of the Borrower in accordance with past practices;
(i) the stated maturity of such Debt shall be a date not earlier than six months after the stated maturity date of the Loans as Borrower incurred in connection with a senior or subordinated unsecured note offering provided that (i) no Event of the date of issuanceDefault has occurred and is continuing or would occur after giving effect to such incurrence, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds incurrence of such convertible Debt, with evidence that the Company is in Debt on a pro forma basis, the Borrower shall be in compliance with all the financial ratios and restrictions covenants set forth in Section 11.12 on Sections 9.13 and 9.14 as of the most recently ended fiscal quarter of the Borrower , (iii) such Debt has a maturity date of measurement, at least one year beyond the Termination Date with respect to the Term Loan Facility and (iv) the restrictive documentation for which contains covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv));
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitationsAgreement;
(j) Suretyship Liabilities unsecured guarantees of Subsidiary obligations (other than obligations for borrowed money);
(k) Debt representing deferred compensation and other similar arrangements to employees of the Borrower and its Consolidated Subsidiaries incurred in the ordinary course of business;
(l) Debt incurred by the Borrower or its Consolidated Subsidiaries in an acquisition or Disposition under agreements providing for indemnification, the adjustment of the purchase price or other similar adjustments;
(m) Debt in respect of netting services, overdraft protections and similar arrangements in each case in connection with cash management or deposit accounts;
(n) Debt incurred by the Borrower or any of its Consolidated Subsidiaries constituting reimbursement obligations with respect to letters of credit, bank guarantees or similar instruments issued in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to similar reimbursement type obligations; provided that constitute Investments permitted under upon the drawing of such letters of credit or the incurrence of such Debt, such obligations are reimbursed within 30 days following such drawing or incurrence;
(o) non-recourse Debt of a Consolidated Subsidiary of the Borrower assumed by such Consolidated Subsidiary in connection with any acquisition pursuant to Section 11.10 9.03(i) (unless only permitted by clause (b) or, if such Consolidated Subsidiary is acquired, existing prior thereto); provided, however, that such Debt exists at the time of Section 11.10)such acquisition at least in the amounts assumed in connection therewith and is not drawn down, created or increased in contemplation of or in connection with such acquisition; and
(kp) other Debt, Debt of the Borrower not otherwise described under subparagraphs (a) through (o) above not to exceed $50,000,000 in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,000aggregate.
Appears in 2 contracts
Sources: Revolving Credit and Term Loan Agreement (Atlas Pipeline Holdings, L.P.), Revolving Credit and Term Loan Agreement (Atlas Pipeline Partners Lp)
Debt. Not, and not permit Neither the Company nor any other Loan Party to, of its Subsidiaries shall directly or indirectly create, incur, assume or suffer otherwise become or remain directly or indirectly liable with respect to exist any Debt, except:
(a) Obligations under this Agreement and the other Loan DocumentsSecured Obligations;
(b) Permitted Existing Debt incurred or assumed after the Closing Date which is secured by Liens permitted by Section 11.2(d), and extensions, renewals and refinancings thereof; provided, that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal QuartersPermitted Refinancing Debt;
(c) Debt in respect of the Parent or Company to any Wholly-Owned Subsidiary or Debt of any Wholly-Owned Subsidiary to the Company, the Parent or another Wholly-Owned Subsidiary; provided that (i) the sum of (A) the aggregate principal amount outstanding of any such Debt owed obligations secured by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been pledged to the Administrative Agent in accordance with the terms of the Guaranty and Pledge AgreementCustomary Permitted Liens;
(d) Hedging Debt constituting Contingent Obligations incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculationpermitted by Section 10.5;
(e) Debt described arising from intercompany loans and advances (a) from any Subsidiary to the Company or any wholly-owned Subsidiary or (b) from the Company to any wholly-owned Domestic Incorporated Subsidiary or (c) from the Company to any wholly-owned Foreign Incorporated Subsidiary; provided, that if the Company is the obligor on Schedule 11.1 and such Debt, such Debt shall be expressly subordinate to the payment in full in cash of the Secured Obligations; provided, further, that the aggregate of all Foreign Subsidiary Investments does not exceed the Permitted Foreign Subsidiary Investment Amount at any extension, renewal or refinancing thereof so long as the principal amount thereof is not increasedtime;
(f) Suretyship Liabilities arising with Debt in respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions Hedging Obligations permitted under Section 11.4 and purchasers in connection with Dispositions permitted under Section 11.410.15;
(g) up secured or unsecured purchase money Debt (including Capital Leases) incurred by the Company or any of its Subsidiaries after the date hereof to finance the acquisition of fixed assets or in conjunction with a Permitted Acquisition, if (1) at the time of such incurrence, no Event of Default or Default has occurred and is continuing or would result from such incurrence, (2) such Debt has a scheduled maturity and is not due on demand, (3) such Debt does not exceed the lower of the fair market value or the cost of the applicable fixed assets on the date acquired, (4) such Debt does not exceed $2,000,000 30,000,000 in the aggregate of outstanding at any time, and (i5) Acquired any Lien securing such Debt assumed in Acquisitions is permitted under Section 11.4 and 10.3 (ii) such Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitionsbeing referred to herein as “Permitted Purchase Money Debt”);
(h) convertible Debt issued by Parent, so long as (i) the stated maturity of such Debt shall be a date not earlier than six months after the stated maturity date of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrencesurety, existence appeal and performance bonds obtained by the Company or making any of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events its Subsidiaries in the ordinary course of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv))business;
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only incurred by the Company to the extent (i) within seller in any Permitted Acquisition as part of the limitations set forth in this Section 11.1 and (ii) consideration therefor, provided that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt is unsecured and, if in excess of other Persons shall count against such limitations$15,000,000 in the aggregate, is subordinated to the Secured Obligations, on terms reasonably acceptable to the Required Holders;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted Debt incurred by clause (b) of Section 11.10)the Company pursuant to this Agreement and the Notes; and
(k) other Debt, in addition to the additional unsecured Debt listed above, in an aggregate outstanding amount not at any time outstanding not exceeding $2,000,00025,000,000.
Appears in 2 contracts
Sources: Note Purchase and Private Shelf Agreement (Schawk Inc), Note Purchase Agreement (Schawk Inc)
Debt. NotThe Borrower will not, and will not permit any other Loan Credit Party to, directly or indirectly, create, incur, assume assume, guarantee or suffer to exist otherwise become or remain directly or indirectly liable with respect to, any Debt, exceptexcept for:
(a) Obligations Debt incurred under this Agreement and the other Loan Financing Documents;
(b) Debt outstanding on the date of this Agreement and set forth on Schedule 5.1, including, for the avoidance of doubt, Debt outstanding under the Prepetition First Lien Credit Agreement and the Prepetition Second Lien Credit Agreement and the aggregate principal amount of the Prepetition Senior Notes, in each case, on the date of this Agreement;
(c) Intercompany Debt arising from loans made by (i) the Borrower to any Guarantor, (ii) any Guarantor to the Borrower, or (iii) any Guarantor to any other Guarantor; provided, however, that upon the request of the Administrative Agent at any time, any such Debt shall be evidenced by promissory notes having terms reasonably satisfactory to the Administrative Agent and the Lead Lenders, and the sole originally executed counterparts of which shall be pledged and delivered to the Administrative Agent, for the benefit of the Secured Parties, as security for the DIP Obligations;
(d) Guarantees by the Borrower of Debt of any Subsidiary permitted hereunder and by any Subsidiary of Debt of the Borrower or any other Subsidiary permitted hereunder;
(e) Debt of the Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Debt assumed after in connection with the Closing Date which is acquisition of any such assets or secured by Liens permitted by Section 11.2(d)a Lien on any such assets prior to the acquisition thereof, and extensions, renewals and refinancings thereof; provided, that the aggregate amount replacements of all any such Debt at any time that do not increase the outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters;
(c) Debt of the Parent or Company to any Wholly-Owned Subsidiary or Debt of any Wholly-Owned Subsidiary to the Company, the Parent or another Wholly-Owned Subsidiaryprincipal amount thereof; provided that (i) the sum of (A) the aggregate principal amount outstanding of any such Debt owed permitted by a foreign Subsidiary and this clause (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13e) shall not exceed $10,000,000, and (ii) 1,000,000 at any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been pledged to the Administrative Agent in accordance with the terms of the Guaranty and Pledge Agreement;
(d) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
(e) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increasedtime outstanding;
(f) Suretyship Liabilities Debt, if any, arising with respect under Swap Contracts, to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions the extent permitted under Section 11.4 and purchasers in connection with Dispositions permitted under Section 11.45.6;
(g) up to $2,000,000 in the aggregate of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitions[reserved];
(h) convertible Debt issued by Parent, so long as (i) of any Person that becomes a Subsidiary after the stated maturity of Closing Date; provided that such Debt shall be exists at the time such Person becomes a date Subsidiary and is not earlier than six months after the stated maturity date created in contemplation of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon or in connection with such Person becoming a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv))Subsidiary;
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations[reserved];
(j) Suretyship Liabilities Debt incurred to finance the acquisition of equipment, provided that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) the amount of Section 11.10); andsuch Debt does not exceed the purchase price of such equipment;
(k) other Debt[reserved];
(l) any Contingent Obligation permitted by Section 5.3;
(m) Debt incurred pursuant to an Excluded Property Leaseback;
(n) Debt incurred under Bonds;
(o) Debt constituting letters of credit and bank guaranties, in addition to the Debt listed aboveextent that such letters of credit and bank guaranties are fully cash collateralized, in an aggregate outstanding principal amount not exceeding $2,000,000 at any time exceeding $2,000,000outstanding.
Appears in 2 contracts
Sources: Restructuring Support Agreement (Warren Resources Inc), Restructuring Support Agreement (Warren Resources Inc)
Debt. Not, and The Company will not permit any other Loan Party to, create, incur, assume or suffer to exist exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt, except:
(a) Obligations under this Agreement and in the other Loan Documents;case of the Company:
(bi) Debt incurred or assumed after the Closing Date which is secured by Liens permitted by Section 11.2(d), and extensions, renewals and refinancings thereof; provided, that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as owed to a Wholly Owned Subsidiary of the previous four Fiscal Quarters;
(c) Debt of the Parent or Company to any Wholly-Owned Subsidiary or Debt of any Wholly-Owned Subsidiary to the Company, the Parent or another Wholly-Owned Subsidiary; provided that (i) the sum of (A) the aggregate principal amount outstanding of any such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by the Company to any Wholly Owned Subsidiary of the Company that is not a foreign Subsidiary Guarantor shall be expressly subordinated in right of payment to the obligations of the Company under the Note Documents and (B) if any such Debt is owed to a Subsidiary Guarantor, such Debt shall be evidenced by a demand note in form by, and substance reasonably satisfactory subject to the Administrative Agent which has been provisions of, an intercompany note that shall be pledged to the Administrative Collateral Agent in accordance with the terms of the Guaranty and Pledge Security Agreement;
(dii) Hedging Obligations other unsecured Debt incurred in favor the ordinary course of business aggregating not more than $50,000,000 at any time outstanding other than Guaranties or other contingent obligations of the Company with respect to any Debt or other obligation of any Subsidiary; provided that (1) the Company shall be in pro forma compliance with the covenants contained in Section 10.1, calculated based on the financial statements most recently delivered to the holders of the Notes pursuant to Section 7.1(a) or (b) and as though such Debt had been incurred at the beginning of the four-quarter period covered thereby, as evidenced by a Lender certificate of the chief financial officer (or an Affiliate thereof for bona fide hedging purposes person performing similar functions) of the Company delivered to the holders of the Notes demonstrating such compliance and not for speculation(2) such unsecured Debt ranks junior to the Notes;
(eiii) other unsecured Debt described on Schedule 11.1 and incurred in the ordinary course of business (including, for the avoidance of doubt, any extension, renewal long-term Debt incurred in connection with a note offering) other than Guaranties or refinancing thereof so long as other contingent obligations of the principal amount thereof is not increased;
(f) Suretyship Liabilities arising Company with respect to customary indemnification obligations any Debt or other obligation of any Subsidiary; provided that (1) the Company shall be in favor pro forma compliance with the covenants contained in Section 10.1, calculated based on the financial statements most recently delivered to the holders of sellers the Notes pursuant to Section 7.1(a) or (b) and assumptions as though such Debt had been incurred at the beginning of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions permitted under Section 11.4;
(g) up to $2,000,000 in the aggregate of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired four-quarter period covered thereby, as evidenced by a Loan Party certificate of the chief financial officer (or person performing similar functions) of the Company delivered to the holders of the Notes demonstrating such compliance, (2) such unsecured Debt matures, and assumed by such Loan Party in transactions which do does not constitute Acquisitions;
(h) convertible Debt issued by Parentbegin to amortize until, so long as (i) the stated maturity of such Debt shall be a date not earlier more than six months after the stated maturity date of the Loans as of Series B Notes and (3) the date of issuance, (ii) no mandatory redemption requirements prior to maturity covenants and other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds material terms of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such unsecured Debt are generally no more restrictive than those set forth in this Agreement and the Credit Agreement other Note Documents; and
(it being understood and agreed iv) Debt under the Bank Facility in an aggregate outstanding principal amount not to exceed $750,000,000 at any time;
(b) in the case of any Subsidiary of the Company: (i) Debt owed to the Company or to a Wholly Owned Subsidiary of the Company; provided that Debt that has (A) no financial covenants, any such Debt owed by a Subsidiary Guarantor to a Wholly Owned Subsidiary that is not a Subsidiary Guarantor shall be expressly subordinated in right of payment to the obligations of such Subsidiary Guarantor under the Note Documents and (B) no restrictive covenants except in the case of Debt arising pursuant to a transaction permitted by clause (c)(viii) below, any such Debt owed to the Company or to a Subsidiary Guarantor shall be evidenced by, and subject to the provisions of, an intercompany note that shall be pledged to the Collateral Agent in accordance with respect to incurrencethe terms of the Security Agreement, existence or making of liens, indebtedness or restricted payments and (Cii) dollar thresholds with respect to any events Debt in the form of default as a result Guaranty of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv));
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.110.3; and
(c) in the case of the Company and its Subsidiaries:
(i) Debt under this Agreement, the Notes and the other Note Documents;
(ii) the Surviving Debt set forth on Schedule 10.3(c) hereto (other than Debt under the Bank Facility);
(iii) non-recourse Debt of the Company and its Subsidiaries incurred solely to finance capital expenditures for the development of Greenfield Projects;
(iv) non-recourse Debt secured by Liens permitted by Section 10.2(d);
(v) Debt in respect of (1) Swaps incurred in the ordinary course of business and consistent with prudent business practice with the aggregate value thereof not to exceed $10,000,000 at any time outstanding and (B2) interest rate Swaps incurred in the ordinary course of business and consistent with prudent business practice of up to $250,000,000 in the aggregate of notional indebtedness at any time outstanding;
(vi) any Debt of Persons extending the maturity of, or refunding or refinancing, in whole or in part, any Surviving Debt or other than Loan Parties that would be Debt permitted under this Section 11.1 if 10.3 (other than Debt under the Bank Facility); provided that the principal amount of such Person were a Loan PartyDebt shall not be increased above the principal amount thereof outstanding immediately prior to such extension, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one refunding or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefromrefinancing, and the direct and contingent obligors therefor shall not be changed, as a result of or in connection with such Debt extension, refunding or refinancing; provided, further, that the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of other Persons shall count against any such limitationsextending, refunding or refinancing Debt, and of any agreement entered into and of any instrument issued in connection therewith, are consistent with prudent business practice and incurred in the ordinary course of business;
(jvii) Suretyship Liabilities Capital Lease Obligations aggregating not more than $100,000,000 and other unsecured Debt incurred in the ordinary course of business; provided, in each case, that constitute Investments permitted under the Company shall be in pro forma compliance with the covenants contained in Section 11.10 (unless only permitted by clause 10.1, calculated based on the financial statements most recently delivered to the holders of the Notes pursuant to Section 7.1(a) or (b) and as though such Capital Lease Obligations or Debt had been incurred at the beginning of Section 11.10); the four-quarter period covered thereby, as evidenced by a certificate of the chief financial officer (or person performing similar functions) of the Company delivered to the holders of the Notes demonstrating such compliance, and
(kviii) other DebtDebt of the Company and its Subsidiaries, if any, arising in addition to the Debt listed above, connection with receivables securitization programs on terms and conditions customary for transactions of that type in an aggregate outstanding principal amount not to exceed $100,000,000 at any time exceeding $2,000,000outstanding.
Appears in 2 contracts
Sources: Note Purchase Agreement (Alliance Holdings GP, L.P.), Note Purchase Agreement (Alliance Resource Partners Lp)
Debt. NotThe Borrower will not, and will not permit any other Loan Party Subsidiary to, incur, create, incur, assume or suffer to exist any Debt, except:
(a) the Obligations arising under this Agreement and the other Loan Documents or any guaranty of or suretyship arrangement for the Obligations arising under the Loan Documents;
(b) Debt accounts payable and accrued expenses, liabilities or other obligations to pay the deferred purchase price of Property or services, from time to time incurred in the ordinary course of business which are not greater than sixty (60) days past the date of invoice or assumed after the Closing Date delinquent or which is secured are being contested in good faith by Liens permitted by Section 11.2(d), appropriate action and extensions, renewals and refinancings thereof; provided, that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quartersfor which adequate reserves have been maintained in accordance with GAAP;
(c) Debt under Capital Leases not to exceed $2,500,000;
(d) Debt associated with bonds or surety obligations required by Governmental Requirements in connection with the operation of the Parent Oil and Gas Properties;
(e) intercompany Debt between the Borrower and any Subsidiary Guarantor or Company between Subsidiary Guarantors to the extent permitted by Section 9.05(g); provided that such Debt is not held, assigned, transferred, negotiated or pledged to any Person other than the Borrower or one of its Wholly-Owned Subsidiary or Debt of any Wholly-Owned Subsidiary to the CompanySubsidiaries, the Parent or another Wholly-Owned Subsidiary; and, provided further, that (i) the sum of (A) the aggregate principal amount outstanding of any such Debt owed by either the Borrower or a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary Guarantor shall be evidenced by a demand note in form and substance reasonably satisfactory subordinated to the Administrative Agent which has been pledged to the Administrative Agent Indebtedness on terms set forth in accordance with the terms of the Guaranty and Pledge Agreement;
(d) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
(e) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased;
(f) Suretyship Liabilities arising with respect to customary indemnification obligations endorsements of negotiable instruments for collection in favor the ordinary course of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions permitted under Section 11.4;business; and
(g) up Debt under the Subordinated Promissory Note in an aggregate principal amount not to exceed $2,000,000 in the aggregate of 25,000,000; provided that: (i) Acquired such Debt assumed in Acquisitions permitted under Section 11.4 is unsecured and shall not have the benefit of any guarantee, letter of credit or other credit support or security; (ii) such Debt secured is fully subordinated in right of payment and liquidation to the Obligations pursuant to the Note Subordination Agreement; (iii) such Debt has a scheduled maturity date that is no earlier than one year after the Maturity Date; (iv) such Debt does not provide for scheduled or mandatory prepayments, redemptions, repayments, or defeasance of principal for any consideration on any date prior to one year after the Maturity Date; (v) the non-default interest rate on the outstanding principal amount of such Debt as of any day does not exceed the highest non-default interest rate per annum that may be applicable to Borrowings pursuant to the terms hereof as of such day (and the terms of such Debt permit accrued and unpaid interest to be capitalized to the outstanding principal thereof (i.e., PIK interest)); (vi) such Debt does not contain (A) any financial covenants or any other affirmative or negative covenants or (B) cross defaults to or for any other Debt or any other events of default (other than the failure to make any payment of principal when due on the maturity date); (vii) such Debt does not have any restriction on the ability of the Borrower or any of its Subsidiaries to amend, supplement or modify this Agreement or the other Loan Documents; (viii) such Debt does not have any restrictions on the ability of the Borrower or any of its Subsidiaries to guarantee the Obligations or pledge assets as collateral security for the Obligations; (ix) such Debt is not assignable or transferable and shall be held at all times by property acquired the Parent; and (x) such Debt shall at all times be evidenced by the Subordinated Promissory Note (and pledged in favor of the Administrative Agent pursuant to a Loan Party Security Instrument in form and assumed by such Loan Party in transactions which do not constitute Acquisitions;substance satisfactory to the Administrative Agent).
(h) convertible other Debt issued by Parent, so long as (i) the stated maturity of such Debt shall be a date not earlier than six months after the stated maturity date of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth exceed $2,500,000 in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv));
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) of Section 11.10); and
(k) other Debt, in addition to the Debt listed above, in an aggregate outstanding amount not at any one time exceeding $2,000,000outstanding.
Appears in 2 contracts
Sources: Credit Agreement (New Source Energy Partners L.P.), Credit Agreement (New Source Energy Partners L.P.)
Debt. Not, and not permit any other Loan Party to, create, incur, assume or suffer to exist any Debt, except:
(a) Obligations under this Agreement and the other Loan Documents;
(b) Debt incurred or assumed after the Closing Date which is secured by Liens permitted by Section 11.2(d), and extensions, renewals and refinancings thereof; provided, provided that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters$5,000,000;
(c) Debt of any Loan Party to another Loan Party or, to the Parent or Company to any Wholly-Owned Subsidiary or extent permitted under Section 11.10 hereof, Debt of any Wholly-Owned Subsidiary to the Company, the Parent any Loan Party or another Wholly-Owned of any Loan Party to any Subsidiary; provided that (i) the sum of (A) the aggregate principal amount outstanding of any such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been and pledged and delivered to the Administrative Agent in accordance with pursuant to the terms Collateral Documents as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations of the Guaranty and Pledge AgreementBorrowers hereunder in a manner reasonably satisfactory to the Administrative Agent;
(d) Subordinated Debt not exceeding $5,000,000 at any time outstanding;
(e) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
(ef) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased;
(fg) Suretyship Endorsements for collection or deposit of any commercial paper secured in the ordinary course of business;
(h) Guaranties of Debt otherwise permitted hereunder;
(i) Debt assumed by any Loan Party in connection with an Acquisition permitted by Section 11.5 so long as the amount thereof does not exceed 50% of the total consideration to be paid by such Loan Party in respect of such Acquisition and no more than $1,000,000 of such assumed Debt is secured;
(j) Contingent Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 11.5 and purchasers in connection with Dispositions dispositions permitted under Section 11.4;
(g) up to $2,000,000 in the aggregate of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitions;
(h) convertible Debt issued by Parent, so long as (i) the stated maturity of such Debt shall be a date not earlier than six months after the stated maturity date of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv));
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) of Section 11.10)11.5; and
(k) other unsecured Debt, in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,00010,000,000.
Appears in 2 contracts
Sources: Credit Agreement (Landauer Inc), Credit Agreement (Landauer Inc)
Debt. Not(a) Prior to the Investment Grade Rating Date, the Borrower will not, and will not permit any other Loan Party of its Restricted Subsidiaries to, create, incur, assume or suffer permit to exist any Debt, except:except (without limiting the provisions of Section 6.12):
(ai) Obligations Debt created under this Agreement and the other Loan Documents;
(bii) Debt incurred of the Borrower or assumed after any of its Restricted Subsidiaries existing on the Closing Availability Date which is secured by Liens permitted by Section 11.2(d)and set forth on Schedule 6.01, and extensions, renewals and refinancings thereof that do not increase the outstanding principal amount thereof; provided, that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters;
(ciii) Debt of the Parent Borrower or Company to any Wholly-Owned Subsidiary or Debt of any Wholly-Owned Subsidiary other Loan Party owing to the Company, the Parent Borrower or another Wholly-Owned Subsidiaryany of its Restricted Subsidiaries; provided that (i) the sum of (A) such Debt shall not have been transferred to any Person other than the aggregate principal amount outstanding Borrower or any of any such its Subsidiaries and (B) in the case of Debt owed by a foreign Loan Party to a Restricted Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay that is not a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000Loan Party, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note is unsecured and subordinated in form and substance right of payment to the Obligations on terms reasonably satisfactory to the Administrative Agent which has been pledged Agent;
(iv) Debt of the Borrower or any other Loan Party owing to ▇▇▇▇ or any of its Subsidiaries (other than ▇▇▇▇ ▇▇, the Borrower or any of its Subsidiaries); provided that (A) that such Debt shall not be transferred to any Person other than ▇▇▇▇ or any of its Subsidiaries and (B) such Debt is unsecured and subordinated in right of payment to the Obligations on terms reasonably satisfactory to the Administrative Agent in accordance with the terms of the Guaranty and Pledge AgreementAgent;
(dv) Hedging Obligations incurred Debt of the Borrower or any of its Restricted Subsidiaries owing to ▇▇▇▇ or any of its Subsidiaries (other than ▇▇▇▇ ▇▇, the Borrower or any of its Subsidiaries) that is assumed by the Borrower or such Restricted Subsidiary in favor connection with any Midstream MLP IPO Transaction or any Midstream MLP Drop-Down Transaction; provided that such Debt shall not be transferred to any Person other than ▇▇▇▇ or any of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculationits Subsidiaries;
(evi) Debt described on Schedule 11.1 to the extent constituting Debt, obligations of the Borrower or any of its Restricted Subsidiaries owing to ▇▇▇▇ or any of its Subsidiaries (other than ▇▇▇▇ ▇▇, the Borrower or any of its Subsidiaries) under any Material Agreement, provided that such obligations (A) shall not constitute indebtedness for borrowed money (including indebtedness evidenced by debt securities) or other obligations primarily intended as a financing obligation and (B) shall not be transferred to any extension, renewal Person other than ▇▇▇▇ or refinancing thereof so long as the principal amount thereof is not increasedany of its Subsidiaries;
(fvii) Suretyship Liabilities Guarantees of Debt permitted under this Section, provided that a Restricted Subsidiary that is not a Loan Party shall not Guarantee Debt that it would not have been permitted to incur under this Section if it were a primary obligor thereon;
(viii) Debt in respect of trade letters of credit issued for the account of the Borrower or any of its Restricted Subsidiaries;
(ix) Debt owed in respect of any overdrafts and related liabilities arising with respect to customary indemnification obligations in favor of sellers from treasury, depository and assumptions of obligations (other than Acquired Debt) cash management services or in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions permitted under Section 11.4;
(g) up to $2,000,000 in the aggregate any automated clearing-house transfers of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitions;
(h) convertible Debt issued by Parent, so long as (i) the stated maturity of funds; provided that such Debt shall be a date not earlier than six months after the stated maturity date repaid in full within 30 days of the Loans as incurrence thereof;
(x) Debt of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control Borrower or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has any Restricted Subsidiary (A) no financial covenantsincurred to finance the acquisition, (B) no restrictive covenants with respect to incurrenceconstruction or improvement of any fixed or capital assets, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv));
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Partyincluding Capitalized Lease Obligations, but only to the extent that such Debt is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement, or (iB) within assumed in connection with the limitations set forth acquisition of any fixed or capital assets, and any extensions, renewals and refinancings of any of the foregoing; provided that, immediately after giving effect to the creation, incurrence or assumption of any such Debt, the sum, without duplication, of (I) the aggregate principal amount of all Debt outstanding in reliance on this Section 11.1 clause (x), together with the aggregate principal amount of all Debt outstanding in reliance on Sections 6.01(a)(xi) and 6.01(a)(xii), and (iiII) the aggregate amount of Attributable Debt under all Sale/Leaseback Transactions then outstanding shall not exceed 15% of the Consolidated Net Tangible Assets as of such time;
(xi) Debt of any Restricted Subsidiary of the Borrower that one becomes a Subsidiary after the Availability Date (or more Loan Parties deriveof any Person not previously a Subsidiary that is merged or consolidated with or into any such Restricted Subsidiary) in a transaction permitted hereunder, but only to the extent that such Debt exists at the time such Person becomes a Subsidiary (or is so merged or consolidated) and is not created in contemplation of or in connection with such Person becoming a Subsidiary (or such merger or consolidation); provided that, immediately after giving effect to the creation, incurrence or assumption of any such Debt, the sum, without duplication, of (1) the aggregate principal amount of all Debt outstanding in reliance on this clause (xi), together with the aggregate principal amount of all Debt outstanding in reliance on Sections 6.01(a)(x) and 6.01(a)(xii), and (2) the aggregate amount of Attributable Debt under all Sale/Leaseback Transactions then outstanding shall not exceed 15% of the Consolidated Net Tangible Assets as of such time;
(xii) other Debt of the Borrower and Restricted Subsidiaries; provided that, immediately after giving effect to the creation, incurrence or assumption of any such Debt, the sum, without duplication, of (1) the aggregate principal amount of all Debt outstanding in reliance on this clause (xii), together with the aggregate principal amount of all Debt outstanding in reliance on Sections 6.01(a)(x) and 6.01(a)(xi), and (2) the aggregate amount of Attributable Debt under all Sale/Leaseback Transactions then outstanding shall not exceed 15% of the Consolidated Net Tangible Assets as of such time;
(xiii) other Debt of ▇▇▇▇ TGP Operations LP, ▇▇▇▇ Export Logistics Operations LP, ▇▇▇▇ North Dakota Pipelines Operations LP and any other Subsidiary that is not wholly owned, directly or indirectly, substantial business or finance benefits therefrom, and such by the Borrower; provided that the aggregate principal amount of all Debt of other Persons shall count against such limitations;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by outstanding in reliance on this clause (bxiii) of Section 11.10)shall not at any time exceed $50,000,000; and
(kxiv) Debt of the Borrower or any Restricted Subsidiary owing to the Borrower or any Restricted Subsidiary in respect of cash pooling arrangements entered into in the ordinary course of business among the Borrower and the Restricted Subsidiaries.
(b) From and after the Investment Grade Rating Date, the Borrower will not permit any of its Restricted Subsidiaries that is not a Loan Party to create, incur, assume or permit to exist any Debt, except (without limiting the provisions of Section 6.12):
(i) Debt of any such Restricted Subsidiary owing to the Borrower or any of its Restricted Subsidiaries; provided that such Debt shall not have been transferred to any Person other than the Borrower or any of its Subsidiaries;
(ii) Debt in respect of trade letters of credit issued for the account of any such Restricted Subsidiary;
(iii) Debt owed in respect of any overdrafts and related liabilities arising from treasury, depository and cash management services or in connection with any automated clearing-house transfers of funds; provided that such Debt shall be repaid in full within 30 days of the incurrence thereof;
(iv) Debt of any such Restricted Subsidiary (A) incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capitalized Lease Obligations, provided that such Debt is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement, or (B) assumed in connection with the acquisition of any fixed or capital assets, and any extensions, renewals and refinancings of any of the foregoing;
(v) Debt of any such Restricted Subsidiary that becomes a Subsidiary of the Borrower after the Availability Date (or of any Person not previously a Subsidiary that is merged or consolidated with or into any such Restricted Subsidiary) in a transaction permitted hereunder, provided that such Debt exists at the time such Person becomes a Subsidiary (or is so merged or consolidated) and is not created in contemplation of or in connection with such Person becoming a Subsidiary (or such merger or consolidation);
(vi) to the extent constituting Debt, obligations of any such Restricted Subsidiary owing to Hess or any of its Subsidiaries (other than the Borrower or any of its Subsidiaries) under any Material Agreement, provided that such obligations (A) shall not constitute indebtedness for borrowed money (including indebtedness evidenced by debt securities) or other obligations primarily intended as a financing obligation and (B) shall not be transferred to any Person other than Hess or any of its Subsidiaries (other than the Borrower or any of its Subsidiaries);
(vii) Guarantees of Debt permitted under this Section; provided that a Restricted Subsidiary that is not a Loan Party shall not Guarantee Debt that it would not have been permitted to incur under this Section if it were a primary obligor thereon;
(viii) other Debt of such Restricted Subsidiaries, provided that, immediately after giving effect to the creation, incurrence or assumption of any such Debt, the sum, without duplication, of (1) the aggregate principal amount of all Debt outstanding in addition to reliance on this clause (viii), (2) the aggregate principal amount of all Debt listed aboveof the Borrower or any other Loan Party then outstanding that is secured by Liens permitted under Section 6.02(b)(x) and (3) the aggregate amount of Attributable Debt under all Sale/Leaseback Transactions then outstanding shall not exceed 15% of the Consolidated Net Tangible Assets as of such time; and
(ix) other Debt of ▇▇▇▇ TGP Operations LP, Hess Export Logistics Operations LP, ▇▇▇▇ North Dakota Pipelines Operations LP and any other Subsidiary that is not wholly owned, directly or indirectly, by the Borrower; provided that the aggregate principal amount of all Debt outstanding in an aggregate outstanding amount reliance on this clause (ix) shall not at any time exceeding exceed $2,000,00050,000,000.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Hess Midstream Partners LP), Revolving Credit Agreement (Hess Midstream Partners LP)
Debt. Not, and not permit any other Loan Party or its Subsidiaries to, create, incur, assume or suffer to exist any Debt, except:
(a) Obligations under this Agreement and the other Loan Documents;
(b) Debt incurred or assumed after the Closing Date which is secured by Liens permitted by Section 11.2(d7.02(d), and extensions, renewals and refinancings thereof; provided, provided that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters$5,000,000;
(c) Debt (other than the Intercompany Subordinated Debt) of the Parent or Company Borrower to any Wholly-Owned Subsidiary Guarantor or Debt of any Wholly-Owned Subsidiary Guarantor to the Company, the Parent or another Wholly-Owned SubsidiaryBorrower; provided that (i) to the sum of (A) extent requested in writing by the aggregate principal amount outstanding of any Administrative Agent such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been and pledged and delivered to the Collateral Agent pursuant to the Collateral Documents as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations of the Borrower hereunder in a manner reasonably satisfactory to the Administrative Agent in accordance with the terms of the Guaranty and Pledge AgreementAgent;
(d) the Earn-Out Obligations;
(e) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
(e) , and Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increasedin respect of Cash Management Agreements;
(f) Suretyship Debt outstanding on the date hereof and listed on Schedule 7.01 and any refinancings, refundings, renewals or extensions thereof; provided that (i) the amount of such Debt is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, refunding, renewing or extending Debt, and of any agreement entered into and of any instrument issued in connection therewith, are no less favorable in any material respect to the Loan Parties or the Lenders than the terms of any agreement or instrument governing the Debt being refinanced, refunded, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Debt does not exceed the then applicable market interest rate;
(g) the Debt to be Repaid (so long as such Debt is repaid on the Commitment Effective Date with the proceeds of the initial Loans hereunder);
(h) Contingent Liabilities arising with respect to customary indemnification obligations in favor of (i) sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and acquisitions or (ii) purchasers in connection with Dispositions dispositions, in each case permitted under Section 11.47.05;
(g) up to $2,000,000 in the aggregate of (i) Acquired Intercompany Subordinated Debt assumed in Acquisitions permitted under Section 11.4 and an aggregate outstanding principal amount not at any time exceeding $87,000,000 (iiplus accrued paid-in-kind interest);
(j) Debt secured by property acquired by a Loan Party and assumed by such Contingent Liabilities in respect of guarantees of any Loan Party in transactions which do not constitute Acquisitionsrespect of Debt or other obligations otherwise permitted hereunder and to the extent such Debt is required to be subordinated such Contingent Liabilities will be equally subordinated;
(hk) convertible Debt issued by Parent, subject to the terms of the Intercreditor Agreement (to the extent applicable) and so long as (i) the stated maturity of such Debt shall be a date not earlier than six months after Intercreditor Agreement has been fully executed and delivered and is acceptable in form and substance to the stated maturity date of the Loans as of the date of issuance, Administrative Agent and (ii) no mandatory redemption requirements the Term B-2 Loan (if it has been funded prior to maturity other than upon the issuance of the Private Placement Notes) is repaid on a Change of Control or Dollar for Dollar basis in an amount equal to the aggregate principal amount the Private Placement Notes, Debt pursuant to other customary event risk featuresthe Private Placement Notes and Private Placement Note Purchase Agreement in an aggregate outstanding principal amount not at any time exceeding $40,000,000 and any refinancings, refundings, renewals or extensions thereof to the extent permitted under the Intercreditor Agreement (iiito the extent applicable);
(l) unsecured Debt and Debt secured by Liens permitted under Section 7.02(h), in addition to the Debt listed above, collectively, in an aggregate outstanding principal amount not at any time exceeding $20,000,000 so long as (A) no Unmatured Event of Default or Event of Unmatured Default shall have has occurred and be is continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to any such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence is incurred or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a would result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv));
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1therefrom, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if after giving effect to such Person were Debt, Borrower is in compliance on a Loan Party, but only to pro forma basis with the extent (i) within the limitations financial covenants set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt 7.14 as of other Persons shall count against such limitations;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) the last day of Section 11.10)the most recent Fiscal Quarter for which a Compliance Certificate has been delivered; and
(km) other unsecured Debt, in addition to the Debt listed above, in an aggregate outstanding principal amount not at any time exceeding $2,000,00030,000,000 so long as (a) such Debt is subordinated to the Obligations, and pursuant to documentation, on terms satisfactory to the Administrative Agent, (B) no Event of Default or Unmatured Default has occurred and is continuing on the date of any such Debt is incurred or would result therefrom, and (C) after giving effect to such Debt, Borrower is in compliance on a pro forma basis with the financial covenants set forth in Section 7.14 as of the last day of the most recent Fiscal Quarter for which a Compliance Certificate has been delivered.
Appears in 2 contracts
Sources: Credit Agreement (Kapstone Paper & Packaging Corp), Credit Agreement (Kapstone Paper & Packaging Corp)
Debt. NotEach of the Parent and the Borrower will not, and will not permit any other Loan Party of its Subsidiaries to, incur, create, incur, assume or suffer to exist any Debt, except:
(a) the Loans or other Obligations arising under this Agreement and the Loan Documents or any guaranty of or suretyship arrangement for the Loans or other Obligations arising under the Loan Documents;
(b) Debt incurred or assumed after under Capital Leases and purchase money Debt of the Closing Date which is secured by Liens permitted by Section 11.2(d), Borrower and extensions, renewals and refinancings thereofits Subsidiaries in an aggregate amount not to exceed $10,000,000; provided, that the aggregate amount of all any such Debt at any time outstanding shall not exceed two percent (2.0%) be secured only by the asset acquired in connection with the incurrence of Parent’s consolidated revenues as of the previous four Fiscal Quarterssuch Debt;
(c) Debt associated with bonds or surety obligations required by Governmental Requirements in connection with the operation of the Parent Oil and Gas Properties;
(d) endorsements of negotiable instruments for collection, deposit or Company to negotiation and warranties of products or services, in each case, incurred in the ordinary course of business;
(e) intercompany Debt between the Borrower and any Wholly-Owned Subsidiary Guarantor or Debt of any between Wholly-Owned Subsidiary Guarantors to the Companyextent permitted by Section 9.05(g); provided that such Debt is not held, assigned, transferred, negotiated or pledged to any Person other than the Parent Borrower or another a Wholly-Owned SubsidiarySubsidiary Guarantor; and, provided, further, that any such Debt owed by either the Borrower or a Wholly-Owned Subsidiary Guarantor shall be subordinated to the Obligations on terms set forth in the Guaranty Agreement;
(f) Second Lien Term Debt and any guarantees thereof, the principal amount of which does not exceed in the aggregate, at the time any such Debt is incurred, an amount equal to the product of two (2) multiplied by the Borrowing Base then in effect (prior to giving effect to any reduction of the Borrowing Base pursuant to clause (vii) below); provided that: (i) such Debt shall be at all times subject to the Intercreditor Agreement and the Obligations shall be secured on a senior priority basis to such Debt; (ii) the portion of the non-default cash interest rate on the outstanding principal amount of such Debt comprised of the LIBOR floor plus the applicable margin does not exceed (A) 11% per annum in the case of the Tranche A Loans and (B) 12% per annum in the case of the Tranche B Loans, and the portion of the non-default PIK interest rate on the outstanding principal amount of such Debt does not exceed (Y) 4% per annum in the case of the Tranche A Loans and (Z) 0% per annum in the case of the Tranche B Loans; (iii) such Second Lien Term Debt does not have any scheduled principal amortization; (iv) such Second Lien Term Debt does not mature sooner than the date which is ninety-one (91) days after the Maturity Date; (v) both before and immediately after giving effect to the incurrence of any such Debt after the Effective Date, no Default, Event of Default or Borrowing Base Deficiency exists or would exist after giving effect to any concurrent repayment of Debt with the proceeds of such incurrence, if any); (vi) the net cash proceeds of the incurrence thereof shall be used to provide working capital for lease acquisitions, for exploration and production operations and for development (including the drilling and completion of producing ▇▇▇▇▇), for acquisitions and Investments permitted hereunder and for funding general corporate purposes; and (vii) the Borrowing Base then in effect shall be adjusted to the extent required by Section 2.07(f) and the Borrower shall make any prepayment required by Section 3.04(c); for purposes of clarification, any Second Lien Term Debt incurred under this Section 9.02(f) which is repaid may not be reborrowed under this Section 9.02(f);
(g) Permitted Refinancing Debt and any guarantees thereof, the proceeds of which shall be used concurrently with the incurrence thereof to refinance the outstanding Second Lien Term Debt permitted under Section 9.02(f) or to refinance the outstanding Refinanced Debt, as the case may be; provided that (i) the sum of (A) the aggregate principal amount outstanding of any such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) Borrower shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory have furnished to the Administrative Agent which has been pledged to and the Administrative Agent in accordance with the terms Lenders copies of the Guaranty and Pledge Agreement;
(d) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
(e) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased;
(f) Suretyship Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions permitted under Section 11.4;
(g) up to $2,000,000 in the aggregate of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitions;
(h) convertible Debt issued by Parent, so long as (i) the stated maturity of such Debt shall be a date not earlier than six months after the stated maturity date final executed versions of the Loans as of the date of issuancedefinitive documents therefor, (ii) both before and immediately after giving effect to the incurrence of such Permitted Refinancing Debt (and any concurrent repayment of Second Lien Term Debt or Refinanced Debt, as the case may be, with the proceeds of such incurrence), no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred occur and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurementwould result therefrom, and (iviii) the restrictive covenants Borrowing Base then in effect shall be adjusted to the extent required by Section 2.07(f), and events the Borrower shall make any prepayment required by Section 3.04(c)(iii); for purposes of default relating to such clarification, any Permitted Refinancing Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv));
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted incurred under this Section 11.1, and (B9.02(g) Debt of Persons other than Loan Parties that would which is repaid may not be permitted reborrowed under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) of Section 11.109.02(g); and
(kh) other Debt, in addition to Guarantees by the Parent and its Subsidiaries of Debt listed above, in an aggregate outstanding amount not at of the Borrower or any time exceeding $2,000,000Wholly-Owned Subsidiary Guarantor otherwise permitted hereunder.
Appears in 2 contracts
Sources: Credit Agreement (Parsley Energy, Inc.), Credit Agreement (Parsley Energy, Inc.)
Debt. Not, and not permit any other Loan Party to, create, incur, assume or suffer to exist any Debt, except:
(a) Obligations under this Agreement and the other Loan Documents;
(b) Debt incurred or assumed after the Closing Date which is secured by Liens permitted by Section 11.2(d7.2(d), and extensions, renewals and refinancings thereof; provided, provided that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters$1,125,000;
(ci) Debt of the Parent or Company any Borrower to any Wholly-Owned Domestic Subsidiary or Debt of any Wholly-Owned Domestic Subsidiary to the Company, the Parent any Borrower or another Wholly-Owned SubsidiaryDomestic Subsidiary of any Borrower; provided that (i) at the sum written request of (A) the aggregate principal amount outstanding of any Agent, such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been and pledged and delivered to Agent (or, prior to the Administrative Agent Discharge of First Lien Obligations, second) pursuant to the Guarantee and Collateral Agreement as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner reasonably satisfactory to Agent; and (ii) Debt owing by Foreign Subsidiaries to Borrowers advanced for working capital and other general corporate purposes of Foreign Subsidiaries in an aggregate amount which, together with the aggregate amount of equity contributions to Foreign Subsidiaries made pursuant to and in accordance with Section 7.11(a)(iii), does not exceed $5,625,000 at any time outstanding, (provided, such Debt in excess of $500,000 in the terms aggregate under this clause (ii) shall be evidenced by notes, and the originals of such notes shall be pledged and delivered shall be delivered to Agent (or prior to the Guaranty Discharge of First Lien Obligations, delivered to First Lien Agent as contractual representative for purposes of perfection for the Agent and Pledge AgreementLenders) pursuant to the Guarantee and Collateral Agreement as additional collateral security for the Obligations);
(d) Hedging Obligations incurred in favor of to satisfy Borrowers’ obligations under Section 6.9 and other Hedging Obligations provided by a First Lien Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
(e) Debt described on Schedule 11.1 7.1 as of the Closing Date, and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased;
(f) Suretyship Liabilities the First Lien Obligations in accordance with the Intercreditor Agreement; provided, that the aggregate principal amount thereof shall not exceed the “Maximum First Lien Principal Amount” (as such term is defined in the Intercreditor Agreement);
(g) Contingent Obligations arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions dispositions permitted under Section 11.4;
(g) up to $2,000,000 in the aggregate of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitions7.5;
(h) convertible Debt issued arising from the honoring by Parenta bank or other financial institution of a check, so long as (i) draft or similar instrument drawn against insufficient funds in the stated maturity ordinary course of business, provided that such Debt shall be a date not earlier than six months after is extinguished within two (2) Business Days of notice to Administrative Borrower or the stated maturity date relevant Subsidiary of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to its incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv));
(i) Suretyship Liabilities purchase price adjustments in respect of working capital by any Borrower or any of its Subsidiaries in connection with any Permitted Acquisition, so long as the aggregate obligations in respect to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that such purchase price adjustments would be permitted under this Section 11.1 if such Person were not result in a Loan Party, but only to the extent (i) within breach of the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations7.11;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) Debt incurred in connection with the financing of Section 11.10); andinsurance premiums in the ordinary course of business;
(k) guaranties by Holdings of any Debt of any Borrower or any Wholly-Owned Domestic Subsidiary so long as such Debt of such Borrower or such Subsidiary is permitted under this Section 7.1; and guaranties by any Borrower of the Debt of any Wholly-Owned Domestic Subsidiary or guaranties by any Subsidiary of the Debt of any Borrower, in each case so long as such Debt is permitted under this Section 7.1;
(l) other unsecured Debt, in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,0002,250,000;
(m) Debt consisting of unsecured earn-out obligations incurred pursuant to the consummation of Permitted Acquisitions, so long as (i) the amount of such Debt that is reflected on the balance sheet of any Loan Party as a liability in accordance with GAAP does not exceed $12,500,000 in the aggregate for all Loan Parties at any time outstanding and (ii) such Debt does not result in payment obligations of the Loan Parties that exceed $3,375,000 in the aggregate in any Fiscal Year;
(n) Equity Cure Securities comprised of Debt of Holdings of the type described in Section 7.14.3(b); and
(o) obligations of one or more Loan Parties in respect to Bank guarantees issued by Commerzbank up to an aggregate amount of 500,000 Euro.
Appears in 2 contracts
Sources: Second Lien Credit Agreement (Performance Health Holdings Corp.), Second Lien Credit Agreement (Performance Health Holdings Corp.)
Debt. NotThe Obligors will not, and will not permit any other Loan Party Subsidiary to, incur, create, incur, assume or suffer to exist any Debt, except:
(a) Obligations the Notes or other Indebtedness arising under this Agreement and the Note Documents or any guaranty of or suretyship arrangement for the Notes or other Loan Indebtedness arising under the Note Documents;
(b) Debt associated with bonds or surety obligations required by Governmental Requirements in connection with the operation of the Properties of the Obligors and the Subsidiaries and approved by the Required Holders;
(c) intercompany Debt between any Obligor and any Subsidiary or between Obligors or between Subsidiaries to the extent permitted by this Section 11.2; provided that such Debt is not held, assigned, transferred, negotiated or pledged to any Person other than any Obligor or one of the Wholly-Owned Subsidiaries, and, provided further, that any such Debt owed by either any Obligor or a Guarantor shall be subordinated to the Indebtedness;
(d) endorsements of negotiable instruments for collection in the ordinary course of business;
(e) Debt in the form of obligations for the deferred purchase price of property or services incurred in the ordinary course of business which are not yet due and payable or are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP have been established, provided that the aggregate principal amount of Debt permitted by this clause (e) together with the aggregate principal amount of Debt permitted by clause (f) of this Section 11.2 shall not exceed $200,000 at any time outstanding;
(f) Debt incurred to finance the acquisition, construction or improvement of any fixed or capital assets (including office equipment, data processing equipment and motor vehicles), including Capital Lease Obligations and any Debt assumed after in connection with the Closing Date which is acquisition of any such assets or secured by Liens permitted by Section 11.2(d)a Lien on any such assets prior to the acquisition thereof, and extensions, renewals and refinancings thereof; provided, that the aggregate amount replacements of all any such Debt at any time that do not increase the outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters;
(c) Debt of the Parent or Company to any Wholly-Owned Subsidiary or Debt of any Wholly-Owned Subsidiary to the Company, the Parent or another Wholly-Owned Subsidiaryprincipal amount thereof; provided that (i) such Debt is incurred prior to or within 90 days after such acquisition or the sum completion of such construction or improvement and (Aii) the aggregate principal amount outstanding of any such Debt owed permitted by a foreign Subsidiary and this clause (Bf) together with the aggregate Investments made after the date hereof principal amount of Debt permitted by the Company or any domestic Subsidiary to any foreign Subsidiary clause (excluding in each case Investments the proceeds e) of which are used exclusively to effect an Acquisition pursuant to this Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) 11.2 shall not exceed $10,000,000, and (ii) 200,000 at any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been pledged to the Administrative Agent in accordance with the terms of the Guaranty and Pledge Agreement;
(d) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
(e) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased;
(f) Suretyship Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions permitted under Section 11.4time outstanding;
(g) up to $2,000,000 in the aggregate of Debt incurred or deposits made (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and worker’s compensation laws, unemployment insurance laws or similar legislation, or (ii) Debt secured by property acquired by in connection with bids, tenders, contracts (other than for the payment of Debt) or leases to which such Obligor is a Loan Party party, (iii) to secure public or statutory obligations of such Obligor, and assumed by (iv) of cash or U.S. government securities made to secure the performance of statutory obligations, surety, stay, customs and appeal bonds to which such Loan Party Obligor a party in transactions which do not constitute Acquisitionsconnection with the operation of the Oil and Gas Properties, in each case in the ordinary course of business;
(h) convertible Debt issued under Swap Agreements listed in Schedule 8.19 and Swap Agreements entered into by Parent, so long as (i) the stated maturity of such Debt shall be a date not earlier than six months Company after the stated maturity date of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, hereof in accordance with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv));
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) of Section 11.10); and
(k) other Debt, in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,000Agreement.
Appears in 2 contracts
Sources: Note Purchase Agreement (Glori Energy Inc.), Note Purchase Agreement (Glori Energy Inc.)
Debt. NotNo Loan Party shall, and not nor shall it permit any other Loan Party of its Subsidiaries to, create, assume, incur, assume or suffer to exist in any manner become liable, directly, indirectly, or contingently in respect of, any Debt other than the following (collectively, the “Permitted Debt, except:”):
(a) Obligations under this Agreement and the other Loan DocumentsObligations;
(b) intercompany Debt incurred or assumed after in the Closing Date which is secured ordinary course of business owed by Liens permitted by Section 11.2(d), and extensions, renewals and refinancings thereofany Loan Party to any other Loan Party; provided, provided that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of is subordinated to the previous four Fiscal QuartersObligations and is also permitted under Section 6.3;
(c) Debt of the Parent any Subsidiary consisting of sureties or Company bonds provided to any Wholly-Owned Subsidiary Governmental Authority or Debt other Person and assuring payment of contingent liabilities of a Loan Party in connection with the operation of its Oil and Gas Properties, including with respect to plugging, facility removal and abandonment of its Oil and Gas Properties, worker’s compensation claims, performance, bid or other surety or bond obligations;
(d) purchase money indebtedness and Capital Leases of any Wholly-Owned Subsidiary in an aggregate principal amount not to exceed $5,000,000 at any time; provided no Loan Party may enter into additional indebtedness of the type described in this clause (d) if a Default is continuing or entering into the additional indebtedness could reasonably be expected to cause a Default; provided that, at any time that the Second Lien Loan Documents would prohibit the incurrence of Debt in the form of purchase money indebtedness, this clause (d) shall be deemed to exclude purchase money indebtedness;
(e) Hedging Arrangements to the Company, the Parent or another Wholly-Owned Subsidiaryextent not prohibited under Section 6.15; provided that (i) the sum of (A) the aggregate principal amount outstanding of any such Debt owed by shall not be secured, except such Debt owing to a foreign Subsidiary and Swap Counterparty that is secured under the Loan Documents, (Bii) such Debt shall not obligate the aggregate Investments made after the date hereof by the Company Borrower or any domestic Subsidiary of its Subsidiaries to any foreign Subsidiary (excluding in each case Investments the proceeds margin call requirements including any requirement to post cash collateral, property collateral or a letter of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000credit, and (iiiii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been pledged to the Administrative Agent in accordance not include any deferred premium payments associated with the terms of the Guaranty and Pledge Agreement;
(d) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
(e) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increasedHedge Arrangements;
(f) Suretyship Liabilities arising Debt in the form of (i) accounts payable to trade creditors for goods or services (ii) payment obligations to a Banking Services Provider under commercial cards to the extent that such payment obligations arise in connection with respect the payment by such Banking Services Provider of accounts payable to customary indemnification obligations in favor trade creditors of sellers the Loan Parties for goods or services, and assumptions of obligations (iii) current operating liabilities (other than Acquired Debtfor borrowed money) which in connection each case is (x) incurred in the ordinary course of business, as presently conducted and (y) not more than 90 days past due, unless contested in good faith by appropriate proceedings and adequate reserves for such items have been made in accordance with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions permitted under Section 11.4;GAAP; and
(g) up to $2,000,000 in Debt consisting of senior unsecured notes issuances (the aggregate of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitions;“Permitted Notes”); provided that:
(h) convertible Debt issued by Parent, so long as (i) the stated maturity Net Leverage Ratio (in the case of any issuance on or prior to June 30, 2015) or the Leverage Ratio (in the case of any issuance following June 30, 2015), as applicable, calculated on a pro forma basis after giving effect to the incurrence of such Debt, shall not be more than 3.50 to 1.00 and the Borrower is in pro forma compliance with Section 6.16(b) after giving effect to any such issuance;
(ii) the Availability shall not be less than 25% of the then existing Borrowing Base, after giving effect to the incurrence of such Debt shall be a date and the corresponding reduction to the Borrowing Base pursuant to Section 2.2(e);
(iii) such Debt is not secured by any Lien;
(iv) no principal amount of such Debt matures earlier than six months after the stated maturity date of the Loans as of the date of issuanceMaturity Date;
(v) such Debt shall not have any amortization or other requirement to purchase, (ii) no mandatory redemption requirements prior to maturity redeem, retire, defease or otherwise make any payment in respect thereof, other than at scheduled maturity thereof and mandatory prepayments which are customary with respect to such type of Debt and that are triggered upon a Change change in control and sale of Control all or pursuant to other customary event risk features, substantially all assets;
(iiivi) no Unmatured Event of Default the agreement or Event of Default indenture governing any such Debt shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios covenants and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt that are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed Second Lien Loan Documents, as in effect on the Effective Date; provided that Debt the inclusion of any covenant that has (A) no financial covenants, (B) no restrictive covenants is customary with respect to incurrence, existence or making such type of liens, indebtedness or restricted payments Debt and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for that is not found in this Agreement shall not be deemed to be more restrictive for such categories of defaults, will satisfy the requirements purposes of this clause (vi);
(vii) no Default or Event of Default is occurring at the time of, or would occur as a result of, any such issuance;
(viii) the agreement or indenture governing any such debt shall not have any restriction (A) on the ability of the Borrower or any of its Subsidiaries to guarantee the Secured Obligations or to pledge assets as Collateral for the Secured Obligations, or (B) on the ability of the Borrower or any of its Subsidiaries to amend, modify, restate or otherwise supplement this Agreement or the other Loan Documents;
(ix) upon the issuance of any such Debt, the Borrowing Base shall be automatically reduced in accordance with and to the extent required by Section 2.2(e); and
(x) any issuance of Debt pursuant to this Section 6.1(g) shall be applied to repay any Second Lien Debt in full and the Second Lien Loan Documents shall be simultaneously terminated;
(h) Second Lien Debt; provided that:
(i) the aggregate principal amount of Second Lien Debt shall not exceed $430,000,000;
(ii) no Second Lien Debt is permitted to be outstanding if any Permitted Notes have been issued or are outstanding;
(iii) the Net Leverage Ratio (in the case of any Second Lien Debt incurred on or prior to June 30, 2015) or the Leverage Ratio (in the case of any Second Lien Debt incurred following June 30, 2015), as applicable, calculated on a pro forma basis after giving effect to the incurrence of such Debt, shall not be more than 3.50 to 1.00 and the Borrower is in pro forma compliance with Section 6.16(b) after giving effect to any such issuance;
(iv) the Availability shall not be less than 25% of the then existing Borrowing Base, after giving effect to the incurrence of such Debt and the corresponding reduction to the Borrowing Base pursuant to Section 2.2(e);
(v) such Debt, if secured, is secured only by a Lien permitted by Section 6.2(l);
(vi) no principal amount of such Debt matures earlier than six months after the Maturity Date;
(vii) such Debt shall not have any amortization or other requirement to purchase, redeem, retire, defease or otherwise make any payment in respect thereof, other than at scheduled maturity thereof and mandatory prepayments which are customary with respect to such type of Debt and that are triggered upon change in control and sale of all or substantially all assets;
(viii) the agreement or indenture governing any such Debt shall have covenants and restrictions that are no more restrictive than those set forth in the Second Lien Loan Documents, as in effect on the Effective Date;
(ix) no Default or Event of Default is occurring at the time of, or would occur as a result of, any such issuance;
(x) the agreement or indenture governing any such debt shall not have any restriction on the ability of the Borrower or any of its Subsidiaries to guarantee the Secured Obligations or to pledge assets as Collateral for the Secured Obligations; and
(xi) upon the issuance of any such Debt, the Borrowing Base shall be automatically reduced in accordance with and to the extent required by Section 2.2(e);
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt endorsements of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to negotiable instruments for collection in the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt ordinary course of other Persons shall count against such limitationsbusiness;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) Debt owing to insurance providers and arising in connection with the financing of Section 11.10); andinsurance premium payments;
(k) other Debt, Debt described in addition clause (k) of the definition thereof to the Debt listed above, extent such guaranty obligations are made by one Loan Party in an aggregate outstanding amount not respect of permitted obligations of another Loan Party; provided that such guaranty would otherwise be Permitted Debt;
(l) (x) at any time exceeding that the Second Lien Loan Documents are in effect, unsecured Debt not otherwise permitted under the preceding provisions of this Section 6.1; provided that, the aggregate outstanding principal amount thereof shall not exceed $2,000,0002,000,000 at any time, and (y) at any time that the Second Lien Loan Documents are not in effect, Debt not otherwise permitted under the preceding provisions of this Section 6.1; provided that, the aggregate outstanding principal amount thereof shall not exceed $5,000,000 at any time.
Appears in 2 contracts
Sources: Credit Agreement (Extraction Oil & Gas, LLC), Credit Agreement (Extraction Oil & Gas, LLC)
Debt. Not, and not permit any other Loan Party to, create, incur, assume or suffer to exist any Debt, except:
(a) Obligations under this Agreement and the other Loan Documents;
(b) Debt incurred or assumed after the Closing Date which is secured by Liens permitted by Section 11.2(d7.2(d), and extensions, renewals and refinancings thereof; provided, provided that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters$1,000,000;
(ci) Debt of the Parent or Company any Borrower to any Wholly-Owned Domestic Subsidiary or Debt of any Wholly-Owned Domestic Subsidiary to the Company, the Parent any Borrower or another Wholly-Owned SubsidiaryDomestic Subsidiary of any Borrower; provided that (i) at the sum written request of (A) the aggregate principal amount outstanding of any Agent, such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been and pledged and delivered to Agent pursuant to the Administrative Agent Guarantee and Collateral Agreement as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in a manner reasonably satisfactory to Agent; and (ii) Debt owing by Foreign Subsidiaries to Borrowers advanced for working capital and other general corporate purposes of Foreign Subsidiaries in an aggregate amount which, together with the aggregate amount of equity contributions to Foreign Subsidiaries made pursuant to and in accordance with Section 7.11(a)(iii), does not exceed $5,000,000 at any time outstanding, (provided, such Debt in excess of $500,000 in the terms aggregate under this clause (ii) shall be evidenced by notes, and the originals of such notes shall be pledged and delivered to Agent pursuant to the Guaranty Guarantee and Pledge AgreementCollateral Agreement as additional collateral security for the Obligations);
(d) Hedging Obligations incurred in favor of to satisfy Borrowers’ obligations under Section 6.9 and other Hedging Obligations provided by a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
(e) Debt described on Schedule 11.1 7.1 as of the Closing Date, and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased;
(f) Suretyship Liabilities the Second Lien Obligations in accordance with the Second Lien Intercreditor Agreement; provided, that the aggregate principal amount thereof shall not exceed the “Maximum Second Lien Principal Amount” (as such term is defined in the Second Lien Intercreditor Agreement);
(g) Contingent Obligations arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions dispositions permitted under Section 11.4;
(g) up to $2,000,000 in the aggregate of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitions7.5;
(h) convertible Debt issued arising from the honoring by Parenta bank or other financial institution of a check, so long as (i) draft or similar instrument drawn against insufficient funds in the stated maturity ordinary course of business, provided that such Debt shall be a date not earlier than six months after is extinguished within two (2) Business Days of notice to Administrative Borrower or the stated maturity date relevant Subsidiary of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to its incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv));
(i) Suretyship Liabilities purchase price adjustments in respect of working capital by any Borrower or any of its Subsidiaries in connection with any Permitted Acquisition, so long as the aggregate obligations in respect to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that such purchase price adjustments would be permitted under this Section 11.1 if such Person were not result in a Loan Party, but only to the extent (i) within breach of the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations7.11;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) Debt incurred in connection with the financing of Section 11.10); andinsurance premiums in the ordinary course of business;
(k) guaranties by Holdings of any Debt of any Borrower or any Wholly-Owned Domestic Subsidiary so long as such Debt of such Borrower or such Subsidiary is permitted under this Section 7.1; and guaranties by any Borrower of the Debt of any Wholly-Owned Domestic Subsidiary or guaranties by any Subsidiary of the Debt of any Borrower, in each case so long as such Debt is permitted under this Section 7.1;
(l) other unsecured Debt, in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,000;
(m) Debt consisting of unsecured earn-out obligations incurred pursuant to the consummation of Permitted Acquisitions, so long as (i) the amount of such Debt that is reflected on the balance sheet of any Loan Party as a liability in accordance with GAAP does not exceed $10,000,000 in the aggregate for all Loan Parties at any time outstanding and (ii) such Debt does not result in payment obligations of the Loan Parties that exceed $3,000,000 in the aggregate in any Fiscal Year;
(n) Equity Cure Securities comprised of Debt of the type described in Section 7.14.4; and
(o) obligations of one or more Loan Parties in respect to bank guarantees issued by Commerzbank up to an aggregate amount of 500,000 Euro.
Appears in 2 contracts
Sources: Credit Agreement (Performance Health Holdings Corp.), Credit Agreement (Performance Health Holdings Corp.)
Debt. Not, and not permit any other Loan Party to, create, incur, assume or suffer to exist any Debt, except:
(a) Obligations under this Agreement and the other Loan Documents;
(b) Debt incurred or assumed after the Closing Date which is secured by Liens permitted by Section 11.2(d), and extensions, renewals and refinancings thereof; provided, provided that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters$1,000,000;
(c) Debt of the Parent or Company to any Wholly-Owned Subsidiary or Debt of any Wholly-Owned Subsidiary to the Company, the Parent Company or another domestic Wholly-Owned Subsidiary; provided that (i) that, upon the sum reasonable request of (A) the aggregate principal amount outstanding of any Administrative Agent, such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been and pledged and delivered to the Administrative Agent in accordance with pursuant to the terms Collateral Documents as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations of the Guaranty and Pledge AgreementCompany hereunder in a manner reasonably satisfactory to the Administrative Agent;
(d) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
(e) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increasedincreased in excess of the amount set forth on such Schedule;
(e) the Debt to be Repaid (so long as such Debt is repaid on the Closing Date with the proceeds of the initial Loans hereunder);
(f) Suretyship Contingent Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions dispositions permitted under Section 11.4;
(g) up to $2,000,000 in the aggregate of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute AcquisitionsContingent Liabilities listed on Schedule 11.1;
(h) convertible Guaranties by the Company and/or its Subsidiaries in respect of Debt issued by Parent, so long as (i) the stated maturity of such Debt shall be a date not earlier than six months after the stated maturity date of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control Company or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in its domestic Subsidiaries permitted by this Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv))11.1;
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1Hedging Obligations approved by the Administrative Agent, incurred in favor of Administrative Agent, any Lender or any of their Affiliates for bona fide hedging purposes and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations;not for speculation; and
(j) Suretyship Liabilities that constitute Investments permitted Debt owing to any trust created under Section 11.10 (unless only permitted by clause (b) a supplemental executive retirement program of Section 11.10); and
(k) other Debt, in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,000Company.
Appears in 2 contracts
Sources: Credit Agreement (Concur Technologies Inc), Credit Agreement (Concur Technologies Inc)
Debt. Not, and not permit Neither any other Loan Party to, create, incur, assume Obligor nor any Subsidiary shall incur or suffer to exist maintain any Debt, except:other than, without duplication, the following (Debt permitted under this Section 7.13 is hereafter referred to as “Permitted Debt”):
(a) Obligations under this Agreement and the other Loan DocumentsObligations;
(b) Debt incurred or assumed after the Closing Date which is secured by Liens permitted by Section 11.2(d), and extensions, renewals and refinancings thereof; provided, that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quartersdescribed on Schedule 6.9;
(c) Capital Leases of Equipment and purchase money secured Debt incurred to purchase or refinance the purchase of Equipment, provided that (i) Liens securing the Parent or Company to any Wholly-Owned Subsidiary or Debt of any Wholly-Owned Subsidiary same attach only to the CompanyEquipment acquired by the incurrence of such Debt and other Equipment the financing of which was provided by the same vendor, and (ii) the Parent aggregate amount of such Debt (including Capital Leases) outstanding does not exceed $10,000,000 at any time;
(d) any Refinancing by an Obligor or another Wholly-Owned Subsidiaryany Subsidiary of Debt incurred in accordance with clause (b) above; provided that (i) the sum principal amount of such Refinanced Debt is not increased, (ii) the Liens, if any, securing such Refinanced Debt do not attach to any assets in addition to those assets, if any, securing the Debt to be refinanced, (iii) no Person that is not an obligor or guarantor of such Debt shall become an obligor or guarantor of such Refinanced Debt; and (iv) the terms of such refunding, renewal or extension are no less favorable to the Obligors, the Agent or the Lenders than the original Debt;
(e) intercompany Debt among the Borrowers and their Subsidiaries to the extent the Investment represented thereby is permitted under Section 7.10 and such Debt is subordinated to the repayment of the Obligations at least to the extent set forth in Section 13.5;
(f) Debt incurred in connection with a Permitted Acquisition, to the extent permitted under the definition of Permitted Acquisition that consists of (Ai) Debt existing prior to the aggregate principal amount outstanding consummation of any such Debt owed by a foreign Subsidiary the Permitted Acquisition (and (Bnot incurred in contemplation thereof) the aggregate Investments made after the date hereof that is permitted to be assumed by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition Obligors pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13clause (c) shall not exceed $10,000,000above, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory acceptable to the Administrative Agent which has been pledged to the Administrative Agent in accordance with the terms of the Guaranty and Pledge Agreement;
(d) Hedging Obligations that is incurred in favor of the seller in such Permitted Acquisition as a Lender or an Affiliate thereof portion of the purchase price for bona fide hedging purposes and not for speculation;
(e) such Permitted Acquisition, including all Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased;
(f) Suretyship Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) under non-compete arrangements entered into in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions permitted under Section 11.4;such Permitted Acquisition that is acceptable to the Agent; and
(g) up to $2,000,000 in the aggregate of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitions;
(h) convertible Debt issued by Parent, so long as (i) the stated maturity of such Debt shall be a date not earlier than six months after the stated maturity date of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv));
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) of Section 11.10); and
(k) other Debt, in addition to the Debt listed abovethat is not secured by any Lien, in an aggregate amount outstanding amount not at any time exceeding not to exceed $2,000,0005,000,000.
Appears in 2 contracts
Sources: Credit Agreement (PSS World Medical Inc), Credit Agreement (PSS World Medical Inc)
Debt. NotCreate, and not incur, assume or suffer to exist, or permit any other Loan Party to, of its Subsidiaries to create, incur, assume or suffer to exist exist, any Debt, except:
(ai) Obligations under this Agreement and in the other Loan Documents;
(b) Debt incurred or assumed after the Closing Date which is secured by Liens permitted by Section 11.2(d), and extensions, renewals and refinancings thereof; provided, that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as case of the previous four Fiscal Quarters;Borrower,
(c) Debt of the Parent or Company to any Wholly-Owned Subsidiary or Debt of any Wholly-Owned Subsidiary to the Company, the Parent or another Wholly-Owned Subsidiary; provided that (i) the sum of (A) Debt owed to a Wholly Owned Subsidiary of the aggregate principal amount outstanding of Borrower; provided that, any such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary Borrower to any foreign Wholly Owned Subsidiary (excluding of the Borrower that is not a Loan Party, shall be subordinated in each case Investments right of payment to the proceeds Obligations of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing the Borrower under the Loan Documents and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form by, and substance reasonably satisfactory subject to the Administrative Agent which has been provisions of, an intercompany note that shall be pledged to the Administrative Collateral Agent in accordance with the terms of the Guaranty and Pledge Security Agreement;,
(dB) Hedging Obligations other unsecured Debt incurred in favor the ordinary course of a Lender business aggregating not more than $50,000,000 at any time outstanding other than Guaranties or an Affiliate thereof for bona fide hedging purposes and not for speculation;
(e) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as other contingent obligations of the principal amount thereof is not increased;
(f) Suretyship Liabilities arising Borrower with respect to customary indemnification obligations any Debt or other obligation of any Subsidiary; provided that (I) the Borrower shall be in favor pro forma compliance with the covenants contained in Section 5.04, calculated based on the financial statements most recently delivered to the Lenders pursuant to Section 5.03 and as though such Debt had been incurred at the beginning of sellers the four-quarter period covered thereby, as evidenced by a certificate of the chief financial officer (or person performing similar functions) of the Borrower delivered to the Administrative Agent demonstrating such compliance and assumptions (II) such unsecured Debt ranks junior to or pari passu with the Facilities,
(C) other unsecured Debt incurred in the ordinary course of obligations business (other than Acquired Debt) including, for the avoidance of doubt, any long-term Debt incurred in connection with Acquisitions permitted under a note offering) other than Guaranties or other contingent obligations of the Borrower with respect to any Debt or other obligation of any Subsidiary; provided that (I) the Borrower shall be in pro forma compliance with the covenants contained in Section 11.4 5.04, calculated based on the financial statements most recently delivered to the Lenders pursuant to Section 5.03 and purchasers in connection with Dispositions permitted under Section 11.4;
(g) up to $2,000,000 in as though such Debt had been incurred at the aggregate beginning of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired the four-quarter period covered thereby, as evidenced by a Loan Party certificate of the chief financial officer (or person performing similar functions) of the Borrower delivered to the Administrative Agent demonstrating such compliance, (II) such unsecured Debt matures, and assumed by such Loan Party in transactions which do does not constitute Acquisitions;
(h) convertible Debt issued by Parentbegin to amortize until, so long as (i) the stated maturity of such Debt shall be a date not earlier more than six months after the stated maturity date of latest Termination Date for all Facilities and (III) the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity covenants and other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds material terms of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such unsecured Debt are generally no more restrictive than those set forth in the Credit Agreement Loan Documents, and
(it being understood i) the Senior Notes and agreed that Permitted Junior Refinancing Debt in respect thereof in an aggregate principal amount not to exceed $145,000,000 and (ii) junior secured Debt that has is issued, incurred or otherwise obtained to refinance, in whole or in part, the Revolving Credit Facility in an aggregate principal amount not to exceed $300,000,000 minus the aggregate principal amount of Permitted Junior Refinancing Debt incurred pursuant to clause (A) no financial covenantsi); provided that, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements case of this clause (ivii), (a) upon the incurrence of any such Debt, the Borrower shall promptly provide notice of the incurrence thereof to the Administrative Agent and the Revolving Credit Commitments shall be automatically and permanently reduced (without further action on the part of any Person) on a dollar for dollar basis by the aggregate principal amount of such Debt, (b) such Debt shall (i) be secured by Liens on (x) the Collateral that are junior to the Liens on the Collateral securing the Obligations and/or (y) property of Persons other than the Borrower or its Subsidiaries, (ii) not secured by any property or assets of any Loan Party other than the Collateral and (iii) not guaranteed by Subsidiaries of the Borrower other than the Subsidiary Guarantors, (c) such Debt does not mature or have scheduled amortization or scheduled payments of principal and is not subject to mandatory redemption, repurchase, prepayment or sinking fund obligation (other than customary offers to repurchase upon a change of control, asset sale or casualty event and customary acceleration rights after an event of default), prior to the date that is the later of (i) September 23, 2019, and (ii) 90 days after the latest Termination Date applicable to the Facilities at the time such Debt is incurred, (d) the security agreements (if such debt is secured by the Collateral) and guarantees (if such Debt is guaranteed by one or more Subsidiaries of the Borrower) of the Borrower and its Subsidiaries relating to such Debt have terms not more favorable to the respective creditors than the terms of the Collateral Documents and the Subsidiary Guaranty (with such differences as are appropriate to reflect the nature of such junior lien Debt and any other differences reasonably satisfactory to the Administrative Agent or the Collateral Agent) and (e) if such Debt is secured by the Collateral, a Representative acting on behalf of the holders of such Debt shall have become party to, or otherwise be subject to the provisions of, the Second Lien Intercreditor Agreement;
(iii) Suretyship Liabilities with respect to in the case of any Subsidiary of the Borrower, (A) Debt owed to the Borrower or to a Wholly Owned Subsidiary of the Borrower; provided that (I) any such Debt owed to any Wholly Owned Subsidiary of the Borrower that is not a Loan Party by any Subsidiary of the Borrower that is a Loan Party, shall be subordinated in right of payment to the Obligations of such Loan Party under the Loan Documents and shall be evidenced by, and subject to the provisions of, an intercompany note that shall be pledged to the Collateral Agent in accordance with the terms of the Security Agreement and (II) any such Debt owed to the Borrower or to a Wholly Owned Subsidiary of the Borrower that is a Loan Party in excess of $250,000 by any Subsidiary that is not a Loan Party shall be evidenced by a promissory note that shall be pledged to the Collateral Agent in accordance with the terms of the Security Agreement, and (B) Debt in the form of a Guaranty of Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) of Section 11.105.02(b); and
(kiii) in the case of the Borrower and its Subsidiaries,
(A) Debt under the Loan Documents,
(B) the Surviving Debt set forth on Schedule 4.01(s) hereto (other than the Senior Notes),
(C) non-recourse Debt of the Borrower and Subsidiaries incurred solely to finance capital expenditures for the development of Greenfield Projects,
(D) non-recourse Debt secured by Liens permitted by Section 5.02(a)(iv),
(E) Debt in respect of (i) Swaps incurred in the ordinary course of business and consistent with prudent business practice with the aggregate value thereof not to exceed $10,000,000 at any time outstanding and (ii) interest rate Swaps incurred in the ordinary course of business and consistent with prudent business practice of up to $250,000,000 of notional indebtedness at any time outstanding,
(F) any Debt extending the maturity of, or refunding or refinancing, in whole or in part, any Surviving Debt or other Debt permitted under this Section 5.02(b) (other than the Senior Notes); provided that the principal amount of such Debt shall not be increased above the principal amount thereof outstanding immediately prior to such extension, refunding or refinancing, and the direct and contingent obligors therefor shall not be changed, as a result of or in connection with such extension, refunding or refinancing; provided further that the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such extending, refunding or refinancing Debt, and of any agreement entered into and of any instrument issued in addition connection therewith, are consistent with prudent business practice and incurred in the ordinary course of business; provided further that the repayment in whole or in part of the Advances pursuant to Section 2.04 or Section 2.06 with the proceeds of Debt incurred pursuant to Section 5.02(b)(i)(B), Section 5.02(b)(i)(C) or Section 5.02(b)(iii)(G) shall not constitute an extension, refunding or refinancing under this subclause (F),
(G) Capital Lease Obligations aggregating not more than $100,000,000 and other unsecured Debt incurred in the ordinary course of business; provided, in each case, that the Borrower shall be in pro forma compliance with the covenants contained in Section 5.04, calculated based on the financial statements most recently delivered to the Lenders pursuant to Section 5.03 and as though such Debt listed aboveor Capital Lease Obligations had been incurred at the beginning of the four-quarter period covered thereby, as evidenced by a certificate of the chief financial officer (or person performing similar functions) of the Borrower delivered to the Administrative Agent demonstrating such compliance, and
(H) Debt of the Borrower and its Subsidiaries, if any, arising in connection with receivables securitization programs on terms and conditions customary for transactions of that type in an aggregate outstanding principal amount not to exceed $100,000,000 at any time exceeding $2,000,000outstanding.
Appears in 2 contracts
Sources: Credit Agreement (Alliance Resource Partners Lp), Credit Agreement (Alliance Holdings GP, L.P.)
Debt. NotEach of the Parent and the Company covenants that it shall not, and shall not permit any other Loan Party Subsidiary to, create, incur, assume or suffer to exist any Debt, except:
(a) Obligations the obligations under this Agreement and the other Loan DocumentsNotes;
(b) Debt incurred or assumed after the Closing Date which is secured by Liens permitted by Section 11.2(dparagraph 6C(d), and extensions, renewals and refinancings thereof; provided, provided that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters$5,000,000;
(c) Debt (other than the Intercompany Subordinated Debt) of the Parent or Company to any Wholly-Owned Subsidiary Guarantor or Debt of any Wholly-Owned Subsidiary Guarantor to the Company, the Parent or another Wholly-Owned Subsidiary; provided that (i) to the sum of (A) extent requested in writing by the aggregate principal amount outstanding of any Required Holders such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been Required Holders and pledged and delivered to the Administrative Collateral Agent pursuant to the Collateral Documents as additional collateral security for the Notes, and the obligations under such demand note shall be subordinated to the Notes in accordance with a manner reasonably satisfactory to the terms of the Guaranty and Pledge AgreementRequired Holders;
(d) the Earn-Out Obligations;
(e) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
(e) , and Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increasedin respect of Cash Management Agreements;
(f) Suretyship Debt outstanding on the date hereof and listed on Schedule 6B(f) and any refinancings, refundings, renewals or extensions thereof; provided that (i) the amount of such Debt is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, refunding, renewing or extending Debt, and of any agreement entered into and of any instrument issued in connection therewith, are no less favorable in any material respect to the Parent, the Company and the other Subsidiaries or the holders of the Notes than the terms of any agreement or instrument governing the Debt being refinanced, refunded, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Debt does not exceed the then applicable market interest rate;
(g) the Debt to be Repaid (which Debt shall include the Term B-2 Loan (as defined in the Credit Agreement) if such Term B-2 Loan is funded prior to the date of closing) set forth on Schedule 6B(g) (so long as such Debt is repaid on the date of closing);
(h) Contingent Liabilities arising with respect to customary indemnification obligations in favor of (i) sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and acquisitions or (ii) purchasers in connection with Dispositions dispositions, in each case permitted under Section 11.4paragraph 6F;
(gi) up Intercompany Subordinated Debt in an aggregate outstanding principal amount not at any time exceeding $87,000,000 (plus accrued paid-in-kind interest);
(j) Contingent Liabilities in respect of guarantees of the Company or any Guarantor in respect of Debt or other obligations otherwise permitted hereunder and to $2,000,000 the extent such Debt is required to be subordinated such Contingent Liabilities will be equally subordinated;
(k) subject to the terms of the Intercreditor Agreement (to the extent applicable), Debt pursuant to the Credit Agreement and the Loan Documents (as defined in the Credit Agreement) in an aggregate of (i) Acquired Debt assumed in Acquisitions outstanding principal amount not at any time exceeding $515,000,000, and any refinancings, refundings, renewals or extensions thereof to the extent permitted under Section 11.4 the Intercreditor Agreement (to the extent applicable), provided that the Term B-2 Loan (as defined in the Credit Agreement) shall not be permitted under this clause (k) and instead is addressed in the foregoing clause (iig);
(l) unsecured Debt and Debt secured by property acquired by a Loan Party and assumed by such Loan Party Liens permitted under paragraph 6C(h), in transactions which do addition to the Debt listed above, collectively, in an aggregate outstanding principal amount not constitute Acquisitions;
(h) convertible Debt issued by Parent, at any time exceeding $20,000,000 so long as (i) the stated maturity of such Debt shall be a date not earlier than six months after the stated maturity date of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have has occurred and be is continuing either immediately before on the date of any such Debt is incurred or immediately after such issuancewould result therefrom, and (ii) after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is Parent and its Subsidiaries are in compliance on a pro forma compliance basis with all the financial ratios and restrictions covenants set forth in Section 11.12 on paragraph 6A as of the date last day of measurement, and (iv) the restrictive covenants and events most recent fiscal quarter for which an Officer’s Certificate of default relating to such Debt are generally no more restrictive than those set forth the Parent has been delivered in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants accordance with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv));
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) of Section 11.10)paragraph 5A; and
(km) other unsecured Debt, in addition to the Debt listed above, in an aggregate outstanding principal amount not at any time exceeding $2,000,000.30,000,000 so long as (i) such Debt is subordinated to the Notes, and pursuant to documentation, on terms satisfactory to the Required Holders, (ii) no Default or Event of Default has occurred and is continuing on the date of any such Debt is incurred or would result therefrom, and (iii) after giving effect to such Debt, the Parent and its Subsidiaries are in compliance on a pro forma basis with the financial covenants set forth in paragraph 6A as of the last day of the most recent fiscal quarter for which an Officer’s Certificate of the Parent has been delivered in accordance with paragraph 5A.
Appears in 2 contracts
Sources: Note Purchase Agreement (Kapstone Paper & Packaging Corp), Note Purchase Agreement (Kapstone Paper & Packaging Corp)
Debt. Not, and not permit any other Loan Party to, Not create, incur, assume or suffer to exist any Debt, except:
(ai) Obligations under this Agreement and the other Loan Documents;
(bii) Debt incurred or assumed after the Closing Date which is secured by Liens permitted by Section 11.2(d11.2(iv), and extensions, renewals and refinancings refinancing thereof; provided, provided that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters$2,500,000;
(ciii) Debt of the Parent or Company Borrower to any domestic Wholly-Owned Subsidiary or Debt of any domestic Wholly-Owned Subsidiary to the Company, the Parent Borrower or another domestic Wholly-Owned Subsidiary; provided that (i) the sum of (A) the aggregate principal amount outstanding of any such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been and pledged and delivered to Agent pursuant to the Administrative Agent Collateral Documents as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations of Borrower hereunder in accordance with a manner reasonably satisfactory to Agent. For the terms avoidance of doubt all day to day intercompany transactions which are netted on the Guaranty and Pledge Borrower’s financial statements are not Debt for purposes of this Agreement;
(div) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof or other Hedging Obligations involving any commodity swap agreement, Forward Contract, future contract, foreign currency hedging obligations or similar instrument designed to protect against fluctuations in commodity prices entered into by any Loan Party in the normal course of its business for bona fide hedging purposes and not for speculation;
(ev) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased;
(fvi) Suretyship the Debt to be Repaid (so long as such Debt is repaid on the Closing Date with the proceeds of the initial Loans hereunder); 69
(vii) Contingent Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions dispositions permitted under Section 11.411.5;
(gviii) up to $2,000,000 Debt incurred in the aggregate ordinary course of (i) Acquired Debt assumed in Acquisitions permitted business under Section 11.4 surety and (ii) Debt secured by property acquired by a Loan Party appeal bonds, performance bonds, bid bonds, appeal bonds, and assumed by such Loan Party in transactions which do not constitute Acquisitionssimilar obligations;
(hix) convertible endorsements of instruments or other payment items for deposit;
(x) unsecured Debt issued of Goldline in the form of loans made by Parent, so long as Borrower to Goldline in an aggregate principal amount outstanding at any time not to exceed $2,000,000;
(ixi) Permitted Secured Metals Lease Obligations in an aggregate principal amount outstanding at any time not to exceed $40,000,000; provided that the stated maturity aggregate amount outstanding at any time of such Debt Permitted Secured Metals Lease Obligations may exceed such limit by not more than 10% for a period of up to five (5) consecutive Business Days on not more than five (5) separate occasions in any Fiscal Year (which shall not be a date not earlier than six months after the stated maturity date of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv)consecutive);
(ixii) Suretyship Liabilities with respect Unsecured Metals Lease Obligations in an aggregate principal amount outstanding at any time not to exceed $35,000,000; provided that the aggregate amount outstanding at any time of such Unsecured Metals Lease Obligations may exceed such limit by not more than 10% for a period of up to five (A5) Debt otherwise permitted under this Section 11.1, and consecutive Business Days on not more than five (B5) separate occasions in any Fiscal Year (which shall not be consecutive);
(xiii) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 AM & ST Associates and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) of Section 11.10); and
(k) other Debt, in addition to the Debt listed above, Borrower in an aggregate outstanding principal amount not at any time exceeding to exceed $2,000,000.1,000,000 incurred for the purpose of acquiring equipment;
Appears in 1 contract
Debt. NotFor purposes of this Agreement, “Debt” means, with respect to the Company and not permit any without duplication: (A) all liabilities for money borrowed and indebtedness evidenced by notes, debentures, bonds or other Loan Party to, create, incur, assume or suffer to exist any Debt, except:
similar instruments; (aB) Obligations under this Agreement and the other Loan Documents;
(b) Debt incurred all obligations issued or assumed after as the Closing Date which is secured by Liens permitted by Section 11.2(ddeferred purchase price of property, all conditional sale obligations, all obligations under any title retention agreement (but excluding trade accounts payable arising in the Ordinary Course of Business), and extensions, renewals and refinancings thereofall obligations in respect of earnout payments or contingent payments related to the acquisition of assets or businesses; provided, that (C) all obligations for the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters;
(c) Debt of the Parent or Company to any Wholly-Owned Subsidiary or Debt reimbursement of any Wholly-Owned Subsidiary obligor on any letter of credit, banker’s acceptance or similar credit transaction (other than obligations with respect to the Company, the Parent or another Wholly-Owned Subsidiary; provided that letters of credit securing obligations (i) the sum of other than obligations described in clauses (A) the aggregate principal amount outstanding of any such Debt owed by a foreign Subsidiary and (B) above) entered into in the aggregate Investments made after Ordinary Course of Business to the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary extent such letters of credit are not drawn upon); (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or D) all obligations to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a Signing combination thereof, which obligations are required to be classified and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000accounted for as capital leases on a balance sheet under GAAP, and (ii) any the amount of such Debt owed by a foreign Subsidiary shall obligations will be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been pledged to the Administrative Agent capitalized amount thereof determined in accordance with GAAP; (E) the terms amount of any dividends declared but not yet paid; (F) all obligations of the Guaranty and Pledge Agreement;
type referred to in this definition of Debt of other Persons for which the Company is responsible or liable as obligor, guarantor, or otherwise; (dG) Hedging Obligations incurred all obligations of the type referred to in favor this definition of a Lender Debt of other Persons secured by any Lien on any property or an Affiliate thereof for bona fide hedging purposes and asset of the Company (whether or not for speculation;
(e) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as such obligation is assumed by the principal amount thereof is not increased;
(f) Suretyship Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions permitted under Section 11.4;
(g) up to $2,000,000 in the aggregate of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 Company); and (iiH) Debt secured by property acquired by a Loan Party all penalty payments, premiums, charges, yield maintenance amounts and assumed by such Loan Party in transactions which do not constitute Acquisitions;
(h) convertible Debt issued by Parent, so long as (i) other expenses relating to the stated maturity prepayment of such Debt shall be a date not earlier than six months after the stated maturity date any obligations of the Loans types referred to in this definition of Debt (assuming such prepayment occurs immediately prior to the Closing on the Closing Date); in all cases as measured as of the date close of issuance, business on the Closing Date. Section 5.9 of the Disclosure Schedule sets forth a true and complete statement of the borrowing limit under all loan commitments (iiincluding indentures) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all and a true and complete statement of the financial ratios and restrictions total amount of the Debt of the Company outstanding as of November 1, 2007 under such commitments. Except as set forth in Section 11.12 on 5.9 of the date Disclosure Schedule, as of measurementNovember 1, 2007 the Company had no outstanding Debt, and (iv) no Debt or commitment for Debt involving the restrictive covenants and events of default relating Company contains, or immediately prior to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenantsClosing will contain, (Ba) no restrictive covenants with respect to incurrenceany restriction upon, existence or making any penalty payment, premium, charge, yield maintenance amount or other expense relating to, the prepayment of liensDebt, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv));
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) any restriction upon the incurrence of Section 11.10); and
Debt or (kc) other Debt, in addition any restriction upon the ability of the Company to the Debt listed above, in an aggregate outstanding amount not at grant any time exceeding $2,000,000Lien on its properties or assets.
Appears in 1 contract
Sources: Merger Agreement (Aar Corp)
Debt. Not, and Such Borrower will not permit any other Loan Party to, create, incur, assume or suffer to exist or be or remain liable for any Debt, exceptDebt of such Borrower or its Subsidiaries other than:
(a) Obligations Debt arising under this Agreement and the other Loan Documents;,
(b) Debt incurred or assumed after overdrafts extended by such ▇▇▇▇▇▇▇▇’s Custodian in the Closing Date which is secured by Liens permitted by Section 11.2(d), and extensions, renewals and refinancings thereof; provided, that the aggregate amount ordinary course of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters;business,
(c) Debt of arising in connection with portfolio investments and investment techniques permissible under the Parent or Company Act, consistent with such Borrower’s investment objectives and policies as stated in the Prospectus and SAI (if applicable) and, with respect to any Wholly-Owned Subsidiary or Debt of any Wholly-Owned Subsidiary to the Companya Designated Subsidiary, the Parent or another Wholly-Owned in accordance with such Designated Subsidiary; ’s organizational documents, provided that in no event shall such Borrower (i) borrow money or create leverage (not including reverse repurchase agreements) under any arrangement other than from the sum of (A) the aggregate principal amount outstanding of any such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition Banks pursuant to Section 11.4 this Agreement or on an overnight basis from such Borrower’s Custodian to pay a Signing and Performance Bonus pursuant to Section 11.13the extent provided in clause (b) shall not exceed $10,000,000, and hereof or (ii) issue or be or remain liable for or have outstanding any “senior security” (as defined in the Act) other than the Loans, for the TALF Borrowers only, TALF Loans permitted under this Agreement, and such Debt owed by other instruments as may be permitted under the Act and the rules and regulations promulgated thereunder. Such Borrower will not issue or have outstanding any preferred stock, except that if such Borrower is a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory closed-end investment company it may issue preferred stock to the Administrative Agent which has been pledged extent permitted by the Act and the rules and regulations promulgated thereunder,
(d) with respect to TALF Borrowers only, Debt arising in connection with the TALF Loans, and
(e) with respect to the Administrative Agent Designated Subsidiaries of BlackRock Strategic Income Opportunities Portfolio (“SIO”), a series of BlackRock Funds V, identified as Special Purpose Vehicles (each an “SPV Designated Subsidiary) on Schedule 4.11 attached hereto (as amended, supplemented or otherwise modified from time to time in accordance with the terms of the Guaranty Section 8.5) only, Debt arising in connection with credit facilities between each such SPV Designated Subsidiary and Pledge Agreement;
(d) Hedging Obligations incurred one or more lenders in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
(e) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the aggregate principal amount thereof is of $370,000,000 at any time outstanding for all such credit facilities collectively; provided that SIO does not increased;
(f) Suretyship Liabilities arising Guarantee, enter into any capital contribution agreements with respect to customary indemnification obligations in favor such Debt (except that, for the avoidance of sellers and assumptions doubt, the funding of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions permitted under Section 11.4;
(g) up one or more capital contributions to $2,000,000 in be made by SIO to an SPV Designated Subsidiary as a condition to the aggregate of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed funding by such Loan Party in transactions which do not constitute Acquisitions;
(h) convertible Debt issued by Parent, so long as (i) the stated maturity lenders of such Debt shall not be deemed to be a date not earlier than six months after the stated maturity date of the Loans as of the date of issuancecapital contribution agreement), (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk featuresotherwise provide any credit support for, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv));
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons lenders shall count against such limitations;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) of Section 11.10); and
(k) other Debt, in addition look to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,000assets of such SPV Designated Subsidiary to satisfy such Debt.
Appears in 1 contract
Debt. NotEach Loan Party and the Parent shall not, and not permit any other Loan Party of its Subsidiaries to, create, incur, assume or suffer or permit to exist any Debt, except:
(a) Obligations under this Agreement and the other Loan Documents;
(b) Debt incurred of the Company or assumed after the Closing Date which is any of its Subsidiaries secured by Liens permitted by Section 11.2(d11.3(e), and extensions, renewals and refinancings thereof; provided, provided that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters$175,000;
(c) Debt of the Parent or Company to any domestic Wholly-Owned Subsidiary or Debt of any domestic Wholly-Owned Subsidiary to the Company, the Parent Company or another domestic Wholly-Owned Subsidiary; provided that (i) the sum of (A) the aggregate principal amount outstanding of any such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been and pledged and delivered to the Administrative Agent in accordance with pursuant to the terms Collateral Documents as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations of the Guaranty and Pledge AgreementCompany hereunder in a manner satisfactory to the Administrative Agent;
(d) Hedging Obligations incurred Contingent Liabilities arising with respect to customary indemnification obligations in favor of a Lender purchasers in connection with dispositions permitted under Section 11.5;
(e) Contingent Liabilities of the Company and/or its Subsidiaries in respect of Debt of the Company or an Affiliate thereof its domestic Wholly-Owned Subsidiaries permitted by this Section 11.1;
(f) Hedging Obligations approved in writing by the Administrative Agent for bona fide hedging purposes and not for speculation;
(eg) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased;
(f) Suretyship Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions permitted under Section 11.4;
(g) up to $2,000,000 in the aggregate of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitions;
(h) convertible the Debt issued by Parent, to be Repaid (so long as (i) the stated maturity of such Debt shall be a date not earlier than six months after is repaid on the stated maturity date Closing Date with the proceeds of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv)hereunder);
(i) Suretyship Liabilities the Debt to be assumed in connection with respect to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations;Convertible Note Offering; and
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) of Section 11.10); and
(k) other Approved Subordinated Debt, in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,000.
Appears in 1 contract
Debt. NotCreate, and not incur, assume or suffer to exist, or permit any other Loan Party to, of its Subsidiaries to create, incur, assume or suffer to exist exist, any Debt, except:
(a) Obligations under this Agreement in the case of any Loan Party, (i) Debt in respect of Hedge Agreements required to be maintained pursuant to Section 6.15, and such other Hedge Agreements entered into to hedge against fluctuations in interest rates or foreign exchange rates and the other price of metals incurred in the ordinary course of business and consistent with prudent business practice, and (ii) Debt in respect of any Existing Letter of Credit or any Bank Guarantee to the extent that a Letter of Credit has been issued and is outstanding hereunder to support such Loan DocumentsParty’s reimbursement obligation in respect of such Existing Letter of Credit or Bank Guarantee;
(bi) in the case of any Foreign Subsidiary, unsecured Debt incurred owed to the European Borrower or assumed Allweiler Group GmbH or to another Foreign Subsidiary which is a Secured Loan Party of which such first Foreign Subsidiary is a direct or indirect Wholly Owned Subsidiary, (ii) in the case of any other Subsidiary of the US Borrower, unsecured Colfax Credit Agreement Debt owed to the US Borrower or to a Wholly Owned Subsidiary (other than a Foreign Subsidiary) of the US Borrower, (iii) in the case of any Subsidiary of the European Borrower, unsecured Debt owed to the European Borrower or to a Wholly Owned Subsidiary of the European Borrower which is a Secured Loan Party, and (iv) additional unsecured Debt owed by any Loan Party or any of its Subsidiaries to any other Loan Party or any of its Subsidiaries; provided that, in each case, such Debt (A) owed to a US Obligations Guarantor shall constitute Pledged Debt securing the Guaranteed Obligations, (B) shall be on terms acceptable to the Administrative Agent, (C) shall be evidenced by promissory notes in form and substance satisfactory to the Administrative Agent, and such promissory notes shall be pledged as security for the Obligations of the holder thereof under the Loan Documents to which such holder is a party and delivered to the Administrative Agent pursuant to the terms of the Security Agreement, and (D) in the case of clause (iv), shall not exceed an aggregate amount of $50,000,000 outstanding at any time less the aggregate amount of equity Investments made after the Closing Date which is pursuant to Section 7.06(a)(iv);
(c) in the case of the US Borrower and its Subsidiaries, (i) Debt under the Loan Documents, (ii) Debt secured by Liens permitted by Section 11.2(d), and extensions, renewals and refinancings thereof; provided, that 7.01(d) not to exceed in the aggregate amount of all such Debt $20,000,000 at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters;
(c) Debt of the Parent or Company to any Wholly-Owned Subsidiary or Debt of any Wholly-Owned Subsidiary to the Company, the Parent or another Wholly-Owned Subsidiary; provided that (i) the sum of (A) the aggregate principal amount outstanding of any such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been pledged to the Administrative Agent in accordance with the terms of the Guaranty and Pledge Agreement;
(d) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
(e) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased;
(f) Suretyship Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions permitted under Section 11.4;
(g) up to $2,000,000 in the aggregate of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitions;
(h) convertible Debt issued by Parent, so long as (i) the stated maturity of such Debt shall be a date not earlier than six months after the stated maturity date of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk featuresoutstanding, (iii) no Unmatured Event unsecured trade payables not overdue by more than 60 days incurred in the ordinary course of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurementbusiness, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenantsCapitalized Leases, (B) no restrictive covenants with respect in the case of Capitalized Leases to incurrencewhich any Subsidiary is a party, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv));
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) of Section 11.10); and
(k) other Debt, in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,000.of
Appears in 1 contract
Sources: Credit Agreement
Debt. Not, and not permit any other Loan Party to, Not create, incur, assume or suffer to exist any Debt, except:
(ai) Obligations under this Agreement and the other Loan Documents;
(bii) Debt incurred or assumed after the Closing Date which is secured by Liens permitted by Section 11.2(d11.2(iv), and extensions, renewals and refinancings refinancing thereof; provided, provided that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters$2,500,000;
(ciii) Debt of the Parent or Company Borrower to any domestic Wholly-Owned Subsidiary or Debt of any domestic Wholly-Owned Subsidiary to the Company, the Parent Borrower or another domestic Wholly-Owned Subsidiary; provided that (i) the sum of (A) the aggregate principal amount outstanding of any such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been and pledged and delivered to Agent pursuant to the Administrative Agent Collateral Documents as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations of Borrower hereunder in accordance with a manner reasonably satisfactory to Agent. For the terms avoidance of doubt all day to day intercompany transactions which are netted on the Guaranty and Pledge Borrower’s financial statements are not Debt for purposes of this Agreement;
(div) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof or other Hedging Obligations involving any commodity swap agreement, Forward Contract, future contract, foreign currency hedging obligations or similar instrument 107 designed to protect against fluctuations in commodity prices entered into by any Loan Party in the normal course of its business for bona fide hedging purposes and not for speculation;
(ev) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased;
(fvi) Suretyship Debt in respect of the Monex Letter of Credit in an amount not to exceed $50,000.00;
(vii) Contingent Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions dispositions permitted under Section 11.411.5;
(gviii) up to $2,000,000 Debt incurred in the aggregate ordinary course of (i) Acquired Debt assumed in Acquisitions permitted business under Section 11.4 surety and (ii) Debt secured by property acquired by a Loan Party appeal bonds, performance bonds, bid bonds, appeal bonds, and assumed by such Loan Party in transactions which do not constitute Acquisitionssimilar obligations;
(hix) convertible Debt issued endorsements of instruments or other payment items for deposit;
(x) Permitted Receivables Indebtedness and any guaranty thereof by Parent, so long as the Borrower and any Subsidiary;
(ixi) Permitted Secured Metals Lease Obligations in an aggregate principal amount outstanding at any time not to exceed $600,000,000; provided that an aggregate principal amount outstanding of Permitted Secured Metals Lease Obligations in excess of $600,000,000 shall not be a violation of this Section 11.1(xi) if cured within one business day after receiving notice by the stated maturity Agent of such Debt shall be a date excess;
(xii) Unsecured Metals Lease Obligations in an aggregate principal amount outstanding at any time not earlier than six months after to exceed $200,000,000; provided that the stated maturity date of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds aggregate principal amount outstanding at any time of such convertible Debt, with evidence that the Company is Unsecured Metals Lease Obligations may exceed such limit by not more than 10% for a period of up to five (5) consecutive Business Days on not more than five (5) separate occasions in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and any Fiscal Year (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv)which shall not be consecutive);
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (Bxiii) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only AM & ST Associates and Borrower in an aggregate principal amount not to exceed $3,000,000 incurred for the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt purpose of other Persons shall count against such limitationsacquiring equipment;
(jxiv) Suretyship Liabilities that constitute Investments permitted Debt of a special purpose securitization vehicle reasonably acceptable to Agent incurred pursuant to the Trust Securitization in an aggregate principal amount outstanding at any time which, together with all Debt outstanding under Section 11.10 (unless only permitted by clause (bxv) below, shall not exceed $100,000,000;
(xv) Debt of Section 11.10)a special purpose securitization vehicle reasonably acceptable to Agent under a Warehouse Facility in an aggregate principal amount outstanding at any time which, together with all Debt outstanding under clause (xiv) above, shall not exceed $100,000,000; 108
(xvi) Debt which may arise under the SCMI Ownership Based Financing in respect of the applicable repurchase obligations;
(xvii) Debt of Excluded Subsidiaries which is non-recourse to the Loan Parties in an aggregate amount not in excess of $500,000 at any time outstanding;
(xviii) Debt of Borrower owed to ▇▇▇▇▇▇▇ Leasing Corporation in an aggregate principal amount not to exceed $10,000,000 incurred for the purpose of leasing equipment used at the A-M Global Logistics Las Vegas, Nevada facility;
(xix) Debt of Borrower pursuant to the PayPal Guaranty; and
(kxx) other unsecured Debt, in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,0001,000,000.
Appears in 1 contract
Debt. Not, and not permit any other Loan Party to, create, incur, assume or suffer to exist any Debt, except:
(a) Obligations under this Agreement and the other Loan Documents;
(b) Debt incurred or assumed after the Closing Date which is secured by Liens permitted by Section 11.2(d7.2(d), and extensions, renewals and refinancings thereof; provided, provided that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters$500,000;
(c) Debt of the Parent or Company Borrower to any domestic Wholly-Owned Subsidiary or Debt of any domestic Wholly-Owned Subsidiary to the Company, the Parent Borrower or another domestic Wholly-Owned Subsidiary; provided that (i) the sum of (A) the aggregate principal amount outstanding of any such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been Lender and pledged and delivered to Lender pursuant to the Administrative Agent Guarantee and Collateral Agreement as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in accordance with the terms of the Guaranty and Pledge Agreementa manner reasonably satisfactory to Lender;
(d) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
(e) Debt described on Schedule 11.1 7.1 as of the Closing Date, and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased;
(e) Hedging Obligations for bona fide hedging purposes and not for speculation;
(f) Suretyship Liabilities guarantees of obligations under real property leases and obligations in respect of severance payments provided by the Borrower in favor of any Subsidiary or by any Subsidiary in favor of either the Borrower or any other Subsidiary, so long as any such guarantee is provided at the time such obligations are incurred;
(g) Contingent Obligations arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions permitted under Section 11.4;
(g) up to $2,000,000 in the aggregate of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitions;7.4; and
(h) convertible Debt issued by Parent, so long as (i) the stated maturity Contingent Obligations of such Debt shall be a date Atlas consisting of guarantees of obligations of Subsidiaries of Borrower that do not earlier than six months after the stated maturity date of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible constitute Debt, with evidence that the Company is in pro forma compliance with an aggregate amount not to exceed $250,000 for all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv))guarantees;
(i) Suretyship Liabilities with respect to (A) Debt earn-out payments otherwise permitted under the terms of this Section 11.1, Agreement and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) of Section 11.10)External Credit Facility; and
(kj) other Debt, in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,000250,000.
Appears in 1 contract
Debt. Not, and not permit any other Loan Party to, create, incur, assume or suffer to exist any Debt, exceptNo Company may:
(a) Obligations Create, incur or suffer to exist (directly or indirectly) any direct, indirect, fixed or contingent liability for any Debt except the following (the “Permitted Debt”):
(i) the Obligation;
(ii) Debt existing on the Closing Date, as more particularly described on Schedule 8.2 (the “Existing Debt”);
(iii) either (A) any Debt arising under or in connection with any Structured Financing that is entered into as a result of an Asset Securitization or (B) any Qualified Intercompany Debt;
(iv) Debt under debentures issued by a Company to an SBIC in an aggregate amount not to exceed $25,000,000 at any one time outstanding (including any such Debt existing on the Closing Date and described on Schedule 8.2), but in any case having recourse to PMC, having the following general attributes: (A) such indebtedness is secured solely by liens on parcels of Qualifying Real Estate; (B) the loan documents evidencing such indebtedness do not contain covenants or other agreements that are more restrictive than those found in the Credit Documents, do not cross-default to the Credit Documents, and are otherwise in form and substance acceptable to Administrative Agent and Required Lenders; and (C) no Event of Default or Potential Default has occurred and is continuing when any such Debt is to be incurred, and no Event of Default or Potential Default would be created by such incurrence. Prior to the incurrence of any Debt permitted by this Agreement clause (iv), PMC shall deliver a written notice to Administrative Agent of its intent to incur such Debt, the proposed obligor, proposed obligee, amount, rate and scheduled amortization of such proposed Debt. PMC shall also provide any other information requested by Administrative Agent and Lenders with respect to such proposed financing, including, without limitation, copies of the loan documents evidencing the proposed financing; and
(v) indebtedness and other Loan Documents;obligations arising under Rate Management Transactions contemplated by this agreement.
(b) Prepay, purchase, repurchase, defease or redeem, or cause to be prepaid, purchased, repurchased, defeased or redeemed, any principal of, or any premium (if any) or interest on, any of its Debt (including, without limitation, any Qualified Intercompany Debt), or fund or cause to be funded any sinking or similar fund for any such Debt (including, without limitation, any Qualified Intercompany Debt), except for:
(i) the Obligation;
(ii) any Debt (other than any Qualified Intercompany Debt) permitted under Section 8.2(a)(iv) above in connection with the sale of the underlying real property to a third party in an arm’s-length transaction, so long as all prepayments required by Section 3.2(c) are made simultaneously therewith;
(iii) With the consent of the Administrative Agent, any Debt owed by a Special Purpose Entity (other than any CDO Subsidiary) incurred in connection with an Asset Securitization, so long as (A) such Debt has been reduced to 15% or assumed after less of its original principal amount, (B) such prepayment fully extinguishes such Debt, (C) no Potential Default or Event of Default then exists or would be created by such prepayment, and (D) all remaining Mortgage Loans and related assets of such Special Purpose Entity are promptly transferred to PMC; or
(iv) in the Closing Date which is secured by Liens case of Qualified Intercompany Debt, any payments expressly permitted by Section 11.2(d), and extensions, renewals and refinancings thereof; provided, that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%8.2(c) of Parent’s consolidated revenues as of the previous four Fiscal Quarters;below.
(c) Debt Prepay, purchase, repurchase, defease or redeem or cause to be prepaid, purchased, repurchased, defeased or redeemed, any principal of, or any premium (if any) or interest on, any of its Qualified Intercompany Debt, or fund or cause to be funded any sinking or similar fund for any Qualified Intercompany Debt. Notwithstanding the Parent or Company to any Wholly-Owned Subsidiary or Debt of any Wholly-Owned Subsidiary to the Companyforegoing, the Parent or another Wholly-Owned Subsidiary; provided that (i) the sum PMC may make regularly scheduled interest payments on its Qualified Intercompany Debt and payments of principal on its Qualified Intercompany Debt upon its stated maturity unless (A) the aggregate an Event of Default has occurred and is continuing under Section 10.1 as a result of a failure to make a payment of principal amount outstanding or interest under any Note or under Section 10.11 as a result of any such Debt owed by a foreign Subsidiary and nonpayment of any Rate Management Obligation when due, or (B) the aggregate Investments made after maturity of the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition Obligation has been accelerated pursuant to either Section 11.4 11.1(a) or to pay a Signing and Performance Bonus pursuant to Section 11.1311.1(b) shall not exceed $10,000,000hereof, and (ii) PMC may make other principal payments or prepayments of Qualified Intercompany Debt (and payment of accrued interest thereon), at its option, at any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory time prior to the Administrative Agent which has been pledged to the Administrative Agent in accordance with the terms of the Guaranty and Pledge Agreement;
(d) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
(e) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased;
(f) Suretyship Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions permitted under Section 11.4;
(g) up to $2,000,000 in the aggregate of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitions;
(h) convertible Debt issued by Parent, so long as (i) the stated maturity of such Debt shall be a date not earlier than six months after the stated maturity date of the Loans as of the date of issuancethereof, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured unless an Event of Default or Event of Default shall have has occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv));
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) of Section 11.10); and
(k) other Debt, in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,000then continuing.
Appears in 1 contract
Debt. Not, and not permit any other Loan Party to, create, incur, assume or suffer to exist any Debt, except:
(a) Obligations under this Agreement and the other Loan Documents;
(b) Debt incurred or assumed after the Closing Date which is secured by Liens permitted by Section 11.2(d), and extensions, renewals and refinancings thereof; provided, provided that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters$5,000,000;
(c) Debt of the Parent or any Company to any Company or any domestic Wholly-Owned Subsidiary of a Company or Debt of any domestic Wholly-Owned Subsidiary of a Company to the Company, the Parent any Company or another domestic Wholly-Owned SubsidiarySubsidiary of a Company; provided that (i) the sum of (A) the aggregate principal amount outstanding of any such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been and pledged and delivered to the Administrative Agent in accordance with pursuant to the terms Collateral Documents as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations of the Guaranty and Pledge AgreementCompanies hereunder in a manner reasonably satisfactory to the Administrative Agent;
(d) Intentionally Omitted;
(e) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
(ef) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased;
(fg) Suretyship Contingent Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions dispositions permitted under Section 11.4;
(g) up to $2,000,000 in the aggregate of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitions11.5;
(h) convertible up to $7,500,000 at any time outstanding of Acquired Debt issued by Parent, so long as assumed in Permitted Acquisitions provided that such Debt is (i) on terms and conditions reasonably satisfactory to the stated maturity Administrative Agent and (ii) is subordinated to the Obligations in a manner reasonably satisfactory to the Administrative Agent; and
(i) Westell’s obligations under the Enginuity Guarantee, provided that the aggregate principal amount of such Debt shall be a date not earlier than six months after the stated maturity date of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv));
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) of Section 11.10); and
(k) other Debt, in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding exceed $2,000,0001,620,000.
Appears in 1 contract
Debt. Not, and not permit any other Loan Party to, create, incur, assume or suffer to exist any Debt, except:
(a) Obligations under this Agreement and the other Loan Documents;
(b) Debt incurred or assumed after the Closing Date which is secured by Liens permitted by Section 11.2(d), and extensions, renewals and refinancings thereof; provided, provided that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of $3,500,000, provided, however, the previous four Fiscal Quartersforgoing limit shall not include a Sale Leaseback if such Sale Leaseback is consummated in an arm’s-length manner on market terms and conditions;
(c) Debt of the Parent or Company to any domestic Wholly-Owned Subsidiary or Debt of any domestic Wholly-Owned Subsidiary to the Company, the Parent Company or another domestic Wholly-Owned Subsidiary; provided that (i) that, upon the sum reasonable request of (A) the aggregate principal amount outstanding of any Administrative Agent, such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been and pledged and delivered to the Administrative Agent in accordance with pursuant to the terms Collateral Documents as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations of the Guaranty and Pledge AgreementCompany hereunder in a manner reasonably satisfactory to the Administrative Agent;
(d) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
(e) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increasedincreased in excess of the amount set forth on such Schedule;
(e) Contingent Liabilities arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 11.5;
(f) Suretyship Contingent Liabilities listed on Schedule 11.1 and Contingent Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions permitted under Section 11.4hereunder;
(g) up to $2,000,000 Guaranties by the Company and/or its Subsidiaries in respect of Debt of the aggregate of (i) Acquired Debt assumed in Acquisitions Company or its domestic Subsidiaries permitted under by this Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitions11.1;
(h) convertible Debt issued by ParentHedging Obligations incurred in favor of Administrative Agent, so long as (i) the stated maturity any Lender or any of such Debt shall be a date their Affiliates for bona fide hedging purposes and not earlier than six months after the stated maturity date of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv))speculation;
(i) Suretyship Liabilities with respect Debt owing to (A) Debt otherwise permitted any trust created under this Section 11.1, and (B) Debt a supplemental executive retirement program of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitationsCompany;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 Unsecured Subordinated Debt up to an aggregate principal amount outstanding at any time of Fifty Million Dollars (unless only permitted $50,000,000), approved prior to the incurrence thereof by clause (b) of Section 11.10)the Administrative Agent and subject, at all times after the incurrence thereof, to a Subordination Agreement; andand 1377643.07
(k) other Debt, in addition Debt of the Company owing to the Debt listed above, Canadian Entities up to $5,000,000 in an aggregate outstanding amount not at any time exceeding $2,000,000the aggregate.
Appears in 1 contract
Sources: Credit Agreement (Cpi Corp)
Debt. NotSuch Credit Party will not, and will not permit any other Loan Party Subsidiary to, directly or indirectly, create, incur, assume assume, guarantee or suffer to exist otherwise become or remain directly or indirectly liable with respect to, any Debt, exceptDebt except for:
(a) Debt, Letter of Credit Liabilities and all other Obligations under this Agreement and the other Loan Financing Documents;
(b) Debt incurred or assumed after outstanding on the Closing Date which is secured by Liens date of this Agreement as set forth in the Information Certificate (other than Debt permitted by Section 11.2(d), and extensions, renewals and refinancings thereof; provided, that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent pursuant to clause (2.0%d) of Parent’s consolidated revenues as of this Section 5.1) to the previous four Fiscal Quartersextent set forth therein;
(c) Debt of the Parent Borrowers incurred or Company to assumed for the purpose of financing all or any Wholly-Owned Subsidiary or Debt part of the cost of acquiring any Wholly-Owned Subsidiary to the Companyfixed asset (including through Capital Leases) and related costs and refinancings thereof, the Parent or another Wholly-Owned Subsidiary; provided that (i) the sum of (A) the in an aggregate principal amount at any time outstanding of any such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed greater than $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been pledged to the Administrative Agent in accordance with the terms of the Guaranty and Pledge Agreement1,500,000;
(d) Hedging Obligations incurred intercompany Debt arising from loans made by a Borrower to (i) any other Borrower or any Domestic Wholly-Owned Subsidiary of any Borrower and (ii) its Foreign Subsidiaries which are Wholly-Owned Subsidiaries in favor an aggregate amount under this clause (ii) not to exceed $500,000 at any time outstanding; provided, however, in each case, such Debt shall be evidenced by promissory notes having terms reasonably satisfactory to Agent, the sole originally executed counterparts of a Lender or an Affiliate thereof which shall be pledged and delivered to Agent, for bona fide hedging purposes the benefit of Agent and not Lenders, as security for speculationthe Obligations;
(e) unsecured Debt described on Schedule 11.1 and of any extension, renewal or refinancing thereof so long as Borrower not to exceed $1,000,000 in the principal amount thereof aggregate at any time outstanding which is not increasedsubordinated to the Obligations in a manner reasonably satisfactory to Agent;
(f) Suretyship Liabilities arising with respect net obligations to customary indemnification obligations in favor a counterparty under any Swap Contract permitted pursuant to the terms of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions permitted under Section 11.4this Agreement;
(g) up Debt consisting of Contingent Obligations, to $2,000,000 in the aggregate of (i) Acquired Debt assumed in Acquisitions extent permitted under pursuant to Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitions5.3;
(h) convertible the Second Lien Debt issued by Parentand refinancings and replacements thereof, so long as (i) to the stated maturity of such Debt shall be a date not earlier than six months after extent permitted pursuant to the stated maturity date terms of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv));Second Lien Intercreditor Agreement; and
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) of Section 11.10); and
(k) other Debt, in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,000arising from Holdings Loans.
Appears in 1 contract
Debt. NotThe Borrower will not, and will not permit any other Loan Party Subsidiary to, create, incur, assume incur or suffer permit to exist any Debt, except:
(a) Obligations Debt evidenced by the Notes or outstanding under this Agreement and either of the other Loan DocumentsRevolving Credit Facilities not in default;
(b) Debt incurred of any Subsidiary to the Borrower or assumed after any other Subsidiary;
(c) Debt existing as of March 31, 2000 as reflected on financial statements delivered under Section 6.2(b) and refinancings thereof other than Debt that has been refinanced by the Closing Date which proceeds of either of the Revolving Credit Facilities;
(d) endorsements in the ordinary course of business of negotiable instruments in the course of collection;
(e) Debt of the Borrower or any Subsidiary representing the portion of the purchase price of property acquired by the Borrower or such Subsidiary that is secured by Liens permitted by the provisions of Section 11.2(d9.2(d), and extensions, renewals and refinancings thereof; provided, however, that the aggregate amount of all such Debt at any no time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters;
(c) Debt of the Parent or Company to any Wholly-Owned Subsidiary or Debt of any Wholly-Owned Subsidiary to the Company, the Parent or another Wholly-Owned Subsidiary; provided that (i) the sum of (A) may the aggregate principal amount outstanding of any such Debt owed by a foreign Subsidiary and outstanding exceed thirty percent (B30%) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been pledged to the Administrative Agent in accordance with the terms of the Guaranty Consolidated Net Worth of the Borrower and Pledge Agreement;
(d) Hedging Obligations incurred in favor its Subsidiaries as of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
(e) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increasedapplicable determination date;
(f) Suretyship Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions permitted under Section 11.4;Debt evidenced by Senior Notes; and
(g) up additional Debt of the Borrower and Structured Securities of the Borrower and the Southern Union Trusts provided that after giving effect to the issuance thereof, there shall exist no Default or Event of Default; and:
(i) the ratio of Consolidated Total Indebtedness to Consolidated Total Capitalization shall be no greater than 0.70 to 1.00; (ii) the ratio of EBDIT for the four fiscal quarters most recently ended to pro forma Cash Interest Expense for the following four fiscal quarters shall be no less than 2.00 to 1.0 at all times; provided, however, that if the additional Debt for which the determinations required to be made by this subparagraph (g) will be used to finance in whole or in part the consideration to be paid by the Borrower for the acquisition of any entity otherwise permitted under the terms of this Agreement, the determination of EBDIT for purposes of this ratio shall include not only the EBDIT of the Borrower and its Subsidiaries for the four fiscal quarters most recently ended, but shall also include the EBDIT of such entity to be acquired for such four fiscal quarters most recently ended; and (iii) (A) such Debt and Structured Securities shall have a final maturity or mandatory redemption date, as the case may be, no earlier than the Maturity Date (as the same may be extended pursuant to Section 2.4) and shall mature or be subject to mandatory redemption or mandatory defeasance no earlier than the Maturity Date (as so extended) and shall be subject to no mandatory redemption or "put" to the Borrower or any Southern Union Trust exercisable, or sinking fund or other similar mandatory principal payment provisions that require payments to be made toward principal, prior to such Maturity Date (as so extended); or (B) (x) such additional Debt shall have a final maturity date prior to the Maturity Date, (y) such additional Debt shall not exceed Eighty Million Dollars ($2,000,000 80,000,000.00) in the aggregate plus Twenty Million Dollars ($20,000,000.00) of reimbursement obligations incurred in connection with Non-Revolving Credit Facility Letters of Credit issued by a Bank or Banks or by any other financial institution; provided, however, that for purposes of determining the aggregate amount of such additional Debt for purposes of this subclause (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 y), the $30,000,000 of 8.375% mortgage notes of PG Energy maturing December 1, 2002 shall not be included, and (iiz) such additional Debt secured by property acquired by shall be borrowed from a Loan Party and assumed by such Loan Party in transactions which do Bank or Banks as a loan or loans arising independent of this Agreement or either of the Revolving Credit Facilities or shall be borrowed from a financial institution that is not constitute Acquisitions;a Bank under this Agreement or either of the Revolving Credit Facilities.
(h) convertible existing short-term Debt issued of any entity specified in the definition of "Pending Acquisitions" that is assumed by Parentthe Borrower in connection with the consummation of any of the Pending Acquisitions, so long as (i) the stated maturity aggregate principal amount of such Debt shall be a date not earlier than six months after the stated maturity date assumed for all of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv));
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 Pending Acquisitions does not exceed $100,000,000.00 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and none of such Debt remains outstanding for more than 180 days after the consummation of other Persons shall count against the applicable merger, unless all or a portion of such limitations;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only Debt is refinanced with Debt otherwise permitted by clause (b) other provisions of this Section 11.10); and
(k) other Debt, in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,0009.3.
Appears in 1 contract
Debt. Not, and not permit any other Loan Party to, create, incur, assume or suffer to exist any Debt, except:
(a) Obligations under this Agreement and the other Loan Documents;
(b) Debt incurred or assumed after the Closing Date which is secured by Liens permitted by Section 11.2(d11.02(d), and extensions, renewals and refinancings thereof; provided, provided that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters$100,000.00;
(c) Debt of the Parent or Company Borrower to any domestic Wholly-Owned Subsidiary or Debt of any domestic Wholly-Owned Subsidiary to the Company, the Parent Borrower or another domestic Wholly-Owned Subsidiary; provided that (i) the sum of (A) the aggregate principal amount outstanding of any such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been Lender and pledged and delivered to the Administrative Agent in accordance with Lender pursuant to the terms Collateral Documents as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations of the Guaranty and Pledge AgreementBorrower hereunder in a manner reasonably satisfactory to the Lender;
(d) Hedging Subordinated Debt;
(e) Rate Management Obligations incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
(ef) Debt described on Schedule 11.1 11.01 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased;
(fg) Suretyship Liabilities arising the Debt to be Repaid (so long as such Debt is repaid on the Closing Date with respect to customary indemnification obligations in favor the proceeds of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions permitted under Section 11.4;the initial Loans hereunder); and
(gh) up to $2,000,000 in the aggregate amount of (i) Acquired acquired debt equal to the Subordinated Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitions;
(h) convertible Debt issued by Parent, so long as (i) the stated maturity of such Debt shall be a date not earlier than six months after the stated maturity date of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv));
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) of Section 11.10); and
(k) other Debt, in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,00011.05.
Appears in 1 contract
Sources: Credit Agreement (Janel Corp)
Debt. NotThe Borrower will not, and will not permit any other Loan Party of its Subsidiaries to, incur, create, incur, assume or suffer permit to exist any Debt, except:
(a) Obligations under this Agreement Debt of the Borrower and its Subsidiaries to the other Lenders pursuant to the Loan Documents;
(b) Existing Debt incurred or assumed after the Closing Date which is secured by Liens permitted by Section 11.2(d), and extensions, renewals and refinancings thereof; provided, that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quartersdescribed on SCHEDULE 7.10 hereto;
(c) Debt of the Parent or Company to any Wholly-Owned Subsidiary or Debt of any Wholly-Owned Subsidiary to the Company, the Parent or another Wholly-Owned Subsidiary; provided that (i) the sum of (A) the aggregate principal amount outstanding of any such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been pledged to the Administrative Agent in accordance with the terms of the Guaranty and Pledge AgreementSubordinated Debt;
(d) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculationCapital Lease Obligations;
(e) Debt described incurred in payment for the acquisition of goods, supplies or merchandise on Schedule 11.1 and any extension, renewal or refinancing thereof so long as normal trade credit in the principal amount thereof is not increasedordinary course of its respective business;
(f) Suretyship Liabilities arising with respect to customary indemnification obligations in favor of sellers Purchase money Debt secured by purchase money Liens, which Debt and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions Liens are permitted under Section 11.4 and purchasers meet all of the requirements of CLAUSE (H) of the definition of Permitted Liens contained in connection with Dispositions permitted under Section 11.4SECTION 1.1;
(g) up to $2,000,000 in the aggregate of (i) Acquired Pre-existing Debt assumed in Acquisitions by the Borrower or a Subsidiary as a condition to a Business Acquisition permitted under Section 11.4 and SECTION 9.5, or (ii) pre-existing Debt of an entity acquired by the Borrower or a Subsidiary in a Business Acquisition, PROVIDED, HOWEVER, that any such Debt shall be (x) Subordinated Debt and shall be unsecured, unless the related collateral is only Property of an Excluded Subsidiary, (y) constitute Capital Lease Obligations or (z) constitute Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitionspurchase-money Liens;
(h) convertible Intercompany Debt issued by Parentbetween or among the Borrower and any of its Majority-Owned or Wholly-Owned Subsidiaries (other than an Excluded Subsidiary), so long as subject to the following requirements: any and all of the Debt permitted pursuant to this SECTION 9.1(H) shall be unsecured (i) unless the stated maturity of security for such Debt shall be a date not earlier than six months after collaterally assigned to the stated maturity date Lenders), shall be evidenced, at the Borrower's option, either on the books and records of the Loans as of Borrower and the date of issuance, (ii) no mandatory redemption requirements prior relevant Subsidiary or by instruments reasonably satisfactory to maturity other than upon a Change of Control or the Agent and all such Debt shall be subordinated to the Obligations pursuant to other customary event risk features, (iii) no Unmatured Event of Default the Master Guaranty or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv))by separate agreement;
(i) Suretyship Liabilities with respect to (A) Intercompany Debt otherwise between or among the Excluded Subsidiaries permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitationsSECTION 9.4;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only The transactions contemplated by the PHC Funding Sale Documents permitted by clause (b) of Section 11.10SECTION 9.12A(C); and;
(k) The Borrower or any of its Subsidiaries may make loans or advances to DHHS; PROVIDED, HOWEVER, that unless DHHS becomes a Wholly- Owned Subsidiary of the Borrower, such loans and advances may only be made so long as (a) DHHS has (i) agreed not to permit any Liens (other Debtthan Permitted Liens and other than those in favor of one or more of the Lenders as hereinafter provided and those securing Capital Lease Obligations, in addition to the extent that such Liens attach only to the Property leased and such Capital Lease Obligations are permitted under the terms of this Agreement) to attach to any of the Property (whether now owned or hereafter acquired) of DHHS, (ii) agreed not to enter into a negative pledge in favor of any Person other than the Agent and the Lenders except in connection with Permitted Liens, and (iii) agreed not to incur any Debt listed other than (x) Capital Lease Obligations and (y) Debt owed to one or more of the Lenders as hereinafter provided, and (b) such amounts do not exceed the product obtained by multiplying three (3) times that portion of the EBITDA of DHHS which is attributable to ▇▇▇▇▇▇▇▇▇▇-Fargo's EBITDA distribution percentage under the DHHS Partnership Agreement. The foregoing restrictions on loans and advances shall not apply to any loan transaction DHHS may enter into with one or more of the Lenders as long as the terms and conditions of such loan transaction have been approved by the Required Lenders (which approval shall not be unreasonably withheld), and are not inconsistent with the representations, warranties and covenants set forth in this Agreement. Except as expressly contemplated above, in an aggregate outstanding amount notwithstanding anything to the contrary contained herein or any other Loan Document, the Loan Documents do not at any time exceeding $2,000,000.permit DHHS to incur Debt other than that described above and other Debt permitted by SECTION 9.1
Appears in 1 contract
Debt. NotThe Borrower will not, and will not permit any other Loan Party Subsidiary of the Borrower to, incur, create, incur, assume or suffer permit to exist any Debt, except:except (subject to the proviso below):
(a) Obligations under this Agreement and Debt to the other Lenders pursuant to the Loan Documents;
(b) unsecured Debt incurred or assumed after the Closing Date which is secured by Liens permitted by Section 11.2(d)under Interest Rate Protection Agreements entered into in compliance with SECTION 8.16; PROVIDED, and extensions, renewals and refinancings thereof; providedHOWEVER, that the aggregate amount of all Debt thereunder may be secured if such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as constitutes a part of the previous four Fiscal QuartersObligations;
(c) existing Debt in the principal amounts and as otherwise described on SCHEDULE 7.10 hereto;
(d) Debt of the Parent Borrower incurred to finance the acquisition, construction, installation or Company to any Wholly-Owned Subsidiary or Debt improvement of any Wholly-Owned Subsidiary to the Company, the Parent or another Wholly-Owned Subsidiarycapital assets; provided PROVIDED that (i) such Debt is incurred within [*] days of such acquisition or the sum completion of such construction, installation or improvement, (Aii) any such Debt incurred in connection with any particular acquisition, construction, installation or improvement shall not exceed [*]% of the cost of such acquisition, construction, installation or improvement, and (iii) the aggregate principal amount outstanding of all Debt permitted by this CLAUSE (D) or a refinancing thereof permitted by CLAUSE (I) below shall not exceed $1,000,000 at any time outstanding;
(e) Subordinated Debt of the Borrower which has been approved by the Administrative Agent and the Required Lenders in writing;
(f) Eligible Secured Debt;
(g) liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and to the extent that the existence of such liabilities will not constitute, cause or result in a Default;
(h) intercompany Debt between or among the Borrower and any of its Wholly-Owned Subsidiaries incurred in the ordinary course of business (including, without limitation, Debt owed by a foreign Subsidiary the Wholly-Owned Subsidiaries of the Borrower to the Borrower in connection with loans of proceeds of (x) the Loans made by the Borrower to such Subsidiaries, the proceeds of which loans are used for the purposes permitted by SECTION 2.10 and (By) the aggregate Investments other loans constituting Eligible Secured Debt made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments other lenders, the proceeds of which are used exclusively to effect an Acquisition purchase assets to be used in the construction and operation of the Network), subject to the following requirements: any and all of the Debt permitted pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13this CLAUSE (H) (i) shall not exceed $10,000,0001,000,000 in aggregate principal amount outstanding (exclusive of any loans made by the Borrower to PFE pursuant to SECTION 2.10(B)), (ii) shall be unsecured, (iii) shall be evidenced by instruments satisfactory to the Administrative Agent which will be pledged to the Administrative Agent (or the Collateral Agent, if the Collateral Agency Agreement is in effect) for the benefit of the Administrative Agent and the Lenders, and (iv) shall be subordinated to the Obligations pursuant to a subordination agreement in form and substance satisfactory to the Administrative Agent; PROVIDED, HOWEVER, that temporary advances made from time to time in the ordinary course of business not to exceed $100,000 in aggregate principal amount at any time owing by any Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to meet the requirements of CLAUSE (III) or CLAUSE (IV) preceding;
(i) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens are permitted under and meet all of the requirements of CLAUSE (G) (including SUBCLAUSES (I), (II), (III) and (IV) thereof) of the definition of Permitted Liens contained in SECTION 1.1;
(j) Debt of the Borrower incurred to refinance any Debt referred to in CLAUSE (C), (D) or (E) above; PROVIDED that (i) the principal amount of any such Debt does not exceed the principal amount of, plus accrued interest and any prepayment premiums applicable to, the Debt refinanced thereby plus any commitment fees or any other out-of-pocket expenses incurred in connection with such refinancing, (ii) any such Debt owed has a scheduled final maturity date that is on or after the scheduled final maturity date of the Debt refinanced thereby, (iii) any such Debt has a weighted average life to maturity that is equal to or longer than the remaining weighted average life to maturity of the Debt refinanced thereby, determined immediately prior to giving effect to such refinancing, (iv) any such Debt does not include any provisions that may require mandatory Repayment thereof prior to scheduled maturity, other than scheduled repayments taken into consideration in determining compliance with CLAUSE (III) above, and does not include other provisions that are materially more burdensome taken as a whole than the provisions included in the Debt being refinanced (except that Eligible Secured Debt that is incurred to refinance other Eligible Secured Debt permitted by this SECTION 9.1 may have prepayment provisions that are substantially the same as those applicable to the Loans hereunder), (v) any such Debt shall not be Guaranteed or secured by any Lien unless the Debt being refinanced was Guaranteed or secured (in which case such Debt shall not be Guaranteed by any Person that did not Guarantee the Debt being refinanced and shall not be secured by a foreign Subsidiary Lien on any asset that did not secure the Debt being refinanced), except that Eligible Secured Debt that is incurred to refinance other secured Debt permitted by SECTION 9.1 may be secured by the Security Documents if the assets securing such refinanced secured Debt become Collateral effective upon such refinancing, and (vi) if the Debt being refinanced is Subordinated Debt, then any Debt incurred to refinance such Subordinated Debt shall be evidenced by a demand note in form and substance reasonably satisfactory subordinated to the Administrative Agent which has been pledged Obligations on terms no less favorable to the Administrative Agent in accordance with Lenders than the terms of the Guaranty and Pledge AgreementSubordinated Debt being refinanced;
(dk) Hedging Obligations incurred Debt consisting of Qualifying Fiber or Conduit Purchases entered into in favor the ordinary course of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;business; and
(el) Guaranties by the Borrower of Debt described on Schedule 11.1 and any extensionof its Subsidiaries, renewal or refinancing thereof so long as the principal amount thereof is not increased;
(f) Suretyship Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) PRE, permitted pursuant to this Agreement, and Guaranties by the Subsidiaries of the Borrower, other than PRE, of Debt of the Borrower permitted pursuant to this Agreement; PROVIDED, HOWEVER, notwithstanding the foregoing or anything to the contrary contained in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions permitted under Section 11.4;
(g) up to $2,000,000 in the aggregate of this Agreement, (i) Acquired PRE shall not incur, create, assume or permit to exist any Debt assumed other than the Debt referred to in Acquisitions permitted under Section 11.4 CLAUSE (A) preceding and Guarantees of Eligible Secured Debt referred to in CLAUSE (iiF) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitions;
(h) convertible Debt issued by Parent, so long as (i) the stated maturity of such Debt shall be a date not earlier than six months after the stated maturity date of the Loans as of the date of issuancepreceding, (ii) no mandatory redemption requirements prior PFE shall not incur, create, assume or permit to maturity exist any Debt other than upon a Change the Debt referred to in CLAUSE (A) preceding and Guarantees of Control or pursuant Eligible Secured Debt referred to other customary event risk featuresin CLAUSE (F) preceding and subordinated, intercompany Debt owed to the Borrower referred to in CLAUSE (H) preceding, and (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurementBorrower will not, and (iv) will not permit any Subsidiary of the restrictive covenants and events Borrower to, incur, create, assume or permit to exist any Debt which is secured by any Lien created, evidenced or governed by any of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv));
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons Security Documents other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 Obligations and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) of Section 11.10); and
(k) other Eligible Secured Debt, in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,000.
Appears in 1 contract
Debt. Not, and not permit any other Loan Party to, Not create, incur, assume or suffer to exist any Debt, except:
(ai) Obligations under this Agreement and the other Loan Documents;
(bii) Debt incurred or assumed after the Closing Date which is secured by Liens permitted by Section 11.2(d11.2(iv), and extensions, renewals and refinancings refinancing thereof; provided, provided that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters$2,500,000;
(ciii) Debt of the Parent or Company Borrower to any domestic Wholly-Owned Subsidiary or Debt of any domestic Wholly-Owned Subsidiary to the Company, the Parent Borrower or another domestic Wholly-Owned Subsidiary; provided that (i) the sum of (A) the aggregate principal amount outstanding of any such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been and pledged and delivered to Agent pursuant to the Administrative Agent Collateral Documents as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations of Borrower hereunder in accordance with a manner reasonably satisfactory to Agent. For the terms avoidance of doubt all day to day intercompany transactions which are netted on the Guaranty and Pledge Borrower’s financial statements are not Debt for purposes of this Agreement;
(div) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof or other Hedging Obligations involving any commodity swap agreement, Forward Contract, future contract, foreign currency hedging obligations or similar instrument designed to protect against fluctuations in commodity prices entered into by any Loan Party in the normal course of its business for bona fide hedging purposes and not for speculation;
(ev) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased;
(fvi) Suretyship [Reserved];
(vii) Contingent Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions dispositions permitted under Section 11.411.5;
(gviii) up to $2,000,000 Debt incurred in the aggregate ordinary course of (i) Acquired Debt assumed in Acquisitions permitted business under Section 11.4 surety and (ii) Debt secured by property acquired by a Loan Party appeal bonds, performance bonds, bid bonds, appeal bonds, and assumed by such Loan Party in transactions which do not constitute Acquisitionssimilar obligations;
(hix) convertible Debt issued by Parent, so long as (i) the stated maturity endorsements of such Debt shall be a date not earlier than six months after the stated maturity date of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity instruments or other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided payment items for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv))deposit;
(ix) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations[Reserved];
(jxi) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) of Section 11.10); and
(k) other Debt, in addition to the Debt listed above, Permitted Secured Metals Lease Obligations in an aggregate principal amount outstanding amount not at any time exceeding not to exceed $2,000,000.400,000,000; provided that an aggregate principal amount outstanding of Permitted Secured Metals Lease Obligations in excess of $400,000,000 shall not be a violation of this Section 11.1(xi) if cured within one business day after receiving notice by the Agent of such excess;
(xii) [Reserved];
Appears in 1 contract
Debt. Not, The Borrower shall not (and shall not suffer or permit any other Loan Party of its Domestic Subsidiaries to, ) create, incur, assume or suffer permit to exist any Debt, except:
(a) Obligations under this Agreement and the other Loan DocumentsObligations;
(b) Debt incurred or assumed after the Closing Date which is secured by Liens permitted by Section 11.2(d), and extensions, renewals and refinancings thereof; provided, that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal QuartersDeferred Taxes;
(c) purchase money Debt secured by purchase money Liens and Capital Leases permitted under clause (d) or (e) of the Parent or Company to any Wholly-Owned Subsidiary or Section 6.7 (and refinancings of such purchase money Debt of any Wholly-Owned Subsidiary to the Company, the Parent or another Wholly-Owned Subsidiary; provided that permitted by such clause (i) the sum of (A) the aggregate principal amount outstanding of any such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been pledged to the Administrative Agent in accordance with the terms of the Guaranty and Pledge Agreementd));
(d) Hedging Obligations Debt incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes by SFC under the Receivables Funding Documents and not for speculationthe Ancillary Services and Lease Agreement;
(e) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increasedwhich constitutes Guaranteed Debt permitted under Section 6.6;
(f) Suretyship Liabilities arising any other Debt owing by the Borrower or any Domestic Subsidiary in an aggregate principal amount not to exceed $35,000,000, provided, that (a) the Borrower supply to the Agent confirmation, in form and substance acceptable to the Agent, that the terms and conditions governing such Debt do not (1) provide for the grant of a Lien with respect to customary indemnification obligations any of the Borrower’s Accounts, Inventory or other assets sold, contributed or in favor which a Lien has been granted pursuant to the Receivables Funding Documents or the Collateral Documents (collectively, “Restricted Assets”), or (2) restrict or prohibit the sale of, or the granting of sellers a security interest in, any Restricted Assets by the Borrower, and assumptions (b) to the extent that the holder of obligations (other than Acquired Debt) such Debt is to obtain a Lien upon any of the Borrower’s Real Property, such holder shall execute and deliver to the Agent a mortgagee or landlord waiver acceptable in connection with Acquisitions permitted under Section 11.4 form and purchasers in connection with Dispositions permitted under Section 11.4substance to the Agent;
(g) up to $2,000,000 in the aggregate of (i) Acquired Debt assumed in Acquisitions which constitutes intercompany Debt permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitions6.2;
(h) convertible Debt issued hedging obligations under swaps, caps and collar arrangements arranged by Parent, so long as a Lender entered into for the sole purposes of hedging in ordinary course of business and consistent with industry practices (i) the stated maturity of such Debt shall be a date and not earlier than six months after the stated maturity date of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv));
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) of Section 11.10speculative purposes); and
(ki) other DebtDebt set forth in Schedule 3.11 (or refinancing or refunding thereof), but not any refinancing that results in addition such Debt (I) having an aggregate principal amount in excess of the Debt that was refinanced or refunded, (2) maturing sooner than the Debt being refinanced or refunded, (3) ranking at the time of such refinancing or refunding senior to the Debt listed abovebeing refinanced or refunded, in an aggregate outstanding amount not at any time exceeding $2,000,000and (4) containing terms (including, without limitation, terms relating to security, amortization, interest rate, premiums, fees, covenants, events of default and remedies) materially less favorable to the Borrower or to the Lenders than those applicable to the Debt being refinanced or refunded.
Appears in 1 contract
Sources: Credit Agreement (Synnex Corp)
Debt. Not, and not permit any other Loan Party to, Not create, incur, assume or suffer to exist any Debt, except:
(ai) Obligations under this Agreement and the other Loan Documents;
(bii) Debt incurred or assumed after the Closing Date which is secured by Liens permitted by Section 11.2(d11.2(iv), and extensions, renewals and refinancings refinancing thereof; provided, provided that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters$2,500,000;
(ciii) Debt of the Parent or Company Borrower to any domestic Wholly-Owned Subsidiary or Debt of any domestic Wholly-Owned Subsidiary to the Company, the Parent Borrower or another domestic Wholly-Owned Subsidiary; provided that (i) the sum of (A) the aggregate principal amount outstanding of any such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been and pledged and delivered to Agent pursuant to the Administrative Agent Collateral Documents as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations of Borrower hereunder in accordance with a manner reasonably satisfactory to Agent. For the terms avoidance of doubt all day to day intercompany transactions which are netted on the Guaranty and Pledge Borrower’s financial statements are not Debt for purposes of this Agreement;
(div) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof or other Hedging Obligations involving any commodity swap agreement, Forward Contract, future contract, foreign currency hedging obligations or similar instrument designed to protect against fluctuations in commodity prices entered into by any Loan Party in the normal course of its business for bona fide hedging purposes and not for speculation;
(ev) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased;
(fvi) Suretyship the Debt to be Repaid (so long as such Debt is repaid on the Closing Date with the proceeds of the initial Loans hereunder);
(vii) Contingent Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions dispositions permitted under Section 11.411.5; 71
(viii) Debt incurred in the ordinary course of business under surety and appeal bonds, performance bonds, bid bonds, appeal bonds, and similar obligations;
(gix) up to $2,000,000 in the aggregate endorsements of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitionsinstruments or other payment items for deposit;
(hx) convertible unsecured Debt issued of Goldline in the form of loans made by Parent, so long as Borrower to Goldline in an aggregate principal amount outstanding at any time not to exceed $2,000,000;
(ixi) Permitted Secured Metals Lease Obligations in an aggregate principal amount outstanding at any time not to exceed $200,000,000; provided that an aggregate principal amount outstanding of Permitted Secured Metals Lease Obligations in excess of $200,000,000 shall not be a violation of this Section 11.1(xi) if cured within one business day after receiving notice by the stated maturity Agent of such Debt shall be a date excess;
(xii) Unsecured Metals Lease Obligations in an aggregate principal amount outstanding at any time not earlier than six months after to exceed $65,000,000; provided that the stated maturity date of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds aggregate principal amount outstanding at any time of such convertible Debt, with evidence that the Company is Unsecured Metals Lease Obligations may exceed such limit by not more than 10% for a period of up to five (5) consecutive Business Days on not more than five (5) separate occasions in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and any Fiscal Year (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv)which shall not be consecutive);
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (Bxiii) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only AM & ST Associates and Borrower in an aggregate principal amount not to exceed $1,000,000 incurred for the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt purpose of other Persons shall count against such limitationsacquiring equipment;
(jxiv) Suretyship Liabilities that constitute Investments permitted [Reserved.]
(xv) [Reserved.]
(xvi) Debt which may arise under Section 11.10 the SCMI Ownership Based Financing in respect of the applicable repurchase obligations;
(unless only permitted by clause xvii) Debt of Excluded Subsidiaries which is non-recourse to the Loan Parties in an aggregate amount not in excess of $500,000 at any time outstanding;
(bxviii) Debt of Section 11.10)Borrower owed to ▇▇▇▇▇▇▇ Leasing Corporation in an aggregate principal amount not to exceed $500,000 incurred for the purpose of leasing equipment used at the A-M Global Logistics Las Vegas, Nevada facility; and
(kxix) other unsecured Debt, in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,0001,000,000.
Appears in 1 contract
Debt. Not, and not permit any other Loan Party to, create, incur, assume or suffer to exist any Debt, except:
(a) Obligations under this Agreement and the other Loan DocumentsObligations;
(b) Debt incurred or assumed after the Closing Date which is secured by Liens permitted by Section 11.2(d7.2(d), and extensions, renewals and refinancings thereof; provided, provided that the aggregate amount of all such Debt at outstanding on any time Business Day, when aggregated with all Debt described in (c) through (g) below and outstanding on such Business Day, shall not exceed two percent the lesser of (2.0%i) $3,000,000 or (ii) 25% of Parent’s consolidated revenues as of EBITDA for the previous four Fiscal Quartersperiod ending on such Business Day;
(c) Debt of the Parent or Company Borrower to any domestic Wholly-Owned Subsidiary or Debt of any domestic Wholly-Owned Subsidiary to the Company, the Parent Borrower or another domestic Wholly-Owned Subsidiary; provided that (i) such Debt, to the sum extent it consists of (A) the aggregate principal amount outstanding of any such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000indebtedness for borrowed money, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been Lender and pledged and delivered to Lender pursuant to the Administrative Agent Guarantee and Collateral Agreement as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in accordance with the terms of the Guaranty and Pledge Agreementa manner reasonably satisfactory to Lender;
(d) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
(e) Debt described on Schedule 11.1 7.1 as of the Closing Date, and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased;
(e) an aggregate outstanding amount of unsecured Non-Senior Debt not at any time exceeding $100,000 (exclusive of Debt permitted under Section 7.1(c));
(f) Suretyship Liabilities Contingent Obligations arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions permitted under Section 11.47.5;
(g) up to $2,000,000 in the aggregate of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitions;
(h) convertible Debt issued by Parent, so long as (i) the stated maturity of such Debt shall be a date not earlier than six months after the stated maturity date of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv));
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) of Section 11.10); and
(k) other Debt, in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,00050,000.
Appears in 1 contract
Debt. Not, and not permit any other Loan Note Party or Subsidiary to, create, incur, assume or suffer to exist any Debt, except:
(a) Obligations under this Agreement and the other Loan Investment Documents;
(b) Debt incurred or assumed after the Closing Date which is secured by Liens permitted by Section 11.2(d7.2(d), and extensions, renewals and refinancings thereof; provided, provided that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters$550,000;
(c) Debt of the Parent or Company Companies to any Wholly-Owned Domestic Subsidiary or Debt of any Wholly-Owned Domestic Subsidiary to the Company, the Parent Companies or another Wholly-Owned SubsidiaryDomestic Subsidiary of the Companies; provided that (i) the sum of (A) the aggregate principal amount outstanding of any that, if requested by Agent, such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been and pledged and delivered to Agent pursuant to the Administrative Agent Guarantee and Collateral Agreement as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in accordance with the terms of the Guaranty and Pledge Agreementa manner reasonably satisfactory to Agent;
(d) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof to satisfy the Companies’ obligations under the Senior Credit Agreement and other Hedging Obligations for bona fide hedging purposes (and not for speculation);
(e) Debt described on Schedule 11.1 7.1 as of the Closing Date, and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased;
(f) Suretyship Liabilities the Senior Obligations;
(g) Contingent Obligations arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions dispositions permitted under Section 11.4;
(g) up to $2,000,000 in the aggregate of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitions7.5;
(h) convertible (i) (A) Permitted Seller Debt and (B) Debt of a Subsidiary of a Company acquired pursuant to a Permitted Acquisition (or Debt of a Target assumed at the time of a Permitted Acquisition of such Target) so long as such Debt was not incurred in contemplation of such Permitted Acquisition; provided, that the aggregate outstanding amount of all Debt permitted by this Section 7.1(h)(i) shall not exceed $550,000 at any time, and (ii) Permitted Earn-Outs in an aggregate amount outstanding not to exceed $550,000 at any time (for purposes of this Section 7.1(h), the amount outstanding determined as the maximum amount potentially payable in respect of such Permitted Earn-Out in accordance with the terms thereof);
(i) Contingent Obligations arising under guarantees by a Note Party of Debt or other obligations of any other Note Party (other than Holdings), which Debt or other obligations are otherwise permitted hereunder; provided that if such obligation is subordinated to the Obligations, such guarantee shall be subordinated to the same extent;
(j) Debt consisting of unpaid insurance premiums (not in excess of one (1) year’s premiums) owing to insurance companies and insurance brokers incurred in connection with the financing of insurance premiums in the ordinary course of business;
(k) unsecured guarantees (i) made in the ordinary course of business with respect to appeal bonds; (ii) made in the ordinary course of business with respect to surety bonds, customs bonds, performance bonds, bid bonds, completion guarantees and similar obligations, in each case to the extent such bonds, guarantees or other obligations are permitted under clause (1) below, or (iii) arising as a result of customary indemnification obligations to purchasers that are not Affiliates of a Note Party in connection with any disposition permitted by Section 7.5 hereof;
(l) indebtedness incurred in the ordinary course of business under (i) appeal bonds and (ii) surety bonds, customs bonds, performance bonds, bid bonds, completion guarantees and similar obligations in an aggregate amount, with respect to this clause (ii), not to exceed $550,000 at any time outstanding;
(m) unsecured Debt of Holdings owing to former employees, officers, or directors (or any spouses, former spouses, or estates of any of the foregoing) of Holdings, the Companies and their Subsidiaries to finance the repurchase by Holdings of equity interests of Holdings that have been issued by Parentto such Persons upon the death or separation from employment thereof, so long as (i) no Event of Default has occurred and is continuing at the stated maturity time of issuance or would result from the incurrence of such Debt shall be a date not earlier than six months after the stated maturity date of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv));
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and the aggregate amount of all such Debt of other Persons shall count against such limitationsoutstanding at any one time does not exceed $550,000;
(jn) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) unsecured indebtedness representing deferred compensation or similar obligations to employees, officers and directors incurred in the ordinary course of Section 11.10); and
(k) other Debt, in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,000.business;
Appears in 1 contract
Sources: Subordination Agreement (CNL Strategic Capital, LLC)
Debt. Not, and not permit any other Loan Party to, create, incur, assume or suffer to exist any Debt, except:
(a) Obligations under this Agreement and the other Loan Documents;
(b) Debt incurred of any Guarantor owing to the Company or assumed after the Closing Date which is secured by Liens permitted by Section 11.2(d), and extensions, renewals and refinancings thereof; provided, that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters;
(c) Debt of the Parent or Company to any Wholly-Owned Subsidiary or Debt of any Wholly-Owned Subsidiary to the Company, the Parent or another Wholly-Owned Subsidiaryother Guarantor; provided that (i) to the sum of (A) the aggregate principal amount outstanding of any extent such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by any note or instrument, such instrument shall be a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been and pledged and delivered to the Administrative Agent in accordance with pursuant to the terms Collateral Documents as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations of the Guaranty Company hereunder in a manner reasonably satisfactory to the Administrative Agent;
(c) Subordinated Debt, provided that (A) immediately before and Pledge Agreementafter (on a pro forma basis acceptable to the Administrative Agent and supported by such certificates required by the Administrative Agent) the incurrence of any such Subordinated Debt, no Unmatured Event of Default or Event of Default shall exist and the Company shall be in pro forma compliance with all financial and other covenants contained herein as of the date of incurrence of such Subordinated Debt and for the following year and (B) all agreements, documents and instruments relating to such Subordinated Debt shall have been delivered to and approved by the Administrative Agent and the Required Lenders prior to the incurrence of such Subordinated Debt;
(d) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculationObligations;
(e) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increasedincreased (and as such amount is reduced from time to time) and no modifications of the terms thereof which are less favorable to the Company or more restrictive on the Company in any material manner shall be permitted;
(f) Suretyship the Debt to be Repaid (so long as such Debt is repaid on the Closing Date with the proceeds of the initial Loans hereunder);
(g) Contingent Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Permitted Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions dispositions permitted under Section 11.4;
(g) up to $2,000,000 in the aggregate of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitions;
(h) convertible Debt issued by Parent, so long as (i) the stated maturity of such Debt shall be a date not earlier than six months after the stated maturity date of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants Earnouts with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy Permitted Acquisitions made by the requirements of this clause (iv))Company;
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1Trade accounts payable and accrued expenses arising in the ordinary course which are current or past due only in an amount which is not material in the aggregate for the Company and its Subsidiaries on a consolidated basis, or which are being contested in good faith by appropriate proceedings and (B) Debt for which adequate reserves are maintained on the books of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitationsCompany;
(j) Suretyship Liabilities Debt which is non-recourse to the Company or its Subsidiaries, provided that constitute Investments permitted under Section 11.10 the aggregate amount of such non-recourse Indebtedness does not exceed $10,000,000 and such non-recourse terms and the other terms of such financing are acceptable to the Administrative Agent;
(unless only k) Debt incurred to finance insurance premiums in the ordinary course of business consistent with past practices of the Company;
(l) Debt of Subsidiaries and Joint Ventures which are not Guarantors owing to the Company or a Guarantor not exceeding an aggregate amount equal to the book value of three percent (3%) of Total Assets; provided, that any such Debt shall reduce, dollar for dollar, the available transactions permitted by Section 11.6(g);
(m) Debt represented by the subtraction of Adjusted Off-Balance Sheet Liabilities from Off-Balance Sheet Liabilities;
(n) Debt (other than Debt to the Principals) other than as described in clauses (a) through (m) above and (p) below not exceeding an aggregate amount equal to the book value of three percent (3%) of Total Assets, provided that not more than 50% of the Debt incurred or otherwise outstanding pursuant to this clause (bn) of may be secured by Permitted Liens;
(o) Debt which may otherwise be permitted pursuant to Section 11.10)11.6; and
(kp) other Debt, in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,000arising from Ordinary Course Capital Leases.
Appears in 1 contract
Debt. NotCreate, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt, except:
(i) in the case of the Loan Parties and MI,
(A) (other than BWXT), Debt in respect of Hedge Agreements with Hedge Banks designed to hedge against fluctuations in foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practice with the aggregate Agreement Value thereof not to exceed $25,000,000 at any time outstanding, unless, with respect to any such excess amount, the Loan Parties (other than BWXT) shall have deposited with the Collateral Agent as cash collateral for the Obligations of the Loan Parties under the Loan Documents an amount equal to such excess amount within three Business Days following the date on which the aggregate Agreement Value exceeds the amount permitted pursuant to this sub-clause (A),
(B) Debt owed to a Collateral Grantor or MII, which Debt (x) shall constitute Pledged Debt and (y) shall be evidenced by promissory notes in form reasonably satisfactory to the Collateral Agent and such promissory notes shall be pledged as security for the Obligations of the holder thereof under the Loan Documents to which such holder is a party and delivered to the Collateral Agent pursuant to the terms of the Security Agreement,
(C) Debt consisting of the MII Loans or Debt described in clause (ii) below,
(D) Debt consisting of Obligations of BWXT to lenders to CH2M Hill Mound, Inc. in an aggregate amount for all such Debt not to exceed $3,000,000 at any time outstanding, and
(E) Subordinated Debt owing to Persons other than MII and its Subsidiaries in an amount not to exceed in the aggregate $25,000,000 at any time outstanding.
(ii) in the case of the Loan Parties and their Subsidiaries,
(A) Debt under the Loan Documents,
(B) Debt secured by Liens permitted by Section 5.02(a)(iv) not to exceed in the aggregate $10,000,000 at any time outstanding,
(C) Capitalized Leases entered into after the date hereof not to exceed in the aggregate $10,000,000 at any time outstanding,
(D) the Surviving Debt, and any Debt extending the maturity of, or refunding or refinancing (including reasonable fees, costs and expenses incurred in connection with such refunding or refinancing), in whole or in part, any Surviving Debt, provided that the terms of any such extending, refunding or refinancing Debt, and of any agreement entered into and of any instrument issued in connection therewith, are otherwise permitted by the Loan Documents, provided further that the principal amount of such Surviving Debt shall not be increased above the principal amount thereof outstanding immediately prior to such extension, refunding or refinancing, and the direct and contingent obligors therefor shall not be changed, as a result of or in connection with such extension, refunding or refinancing, provided still further that the terms relating to principal amount, rate of interest, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such extending, refunding or refinancing Debt, and of any agreement entered into and of any instrument issued in connection therewith, are no less favorable in any material respect to the Borrowers or the Lender Parties than the terms of any agreement or instrument governing the Surviving Debt being extended, refunded or refinanced,
(1) Debt consisting of intercompany Debt between or among any of the Loan Parties or any of their respective Subsidiaries so long as the Obligations of the debtors thereunder are subordinated to their Obligations, if any, under the Loan Documents and are incurred in the ordinary course of business consistent with past practices, and (2) Debt consisting of intercompany Debt owing by the Loan Parties or any of their respective Subsidiaries to any Insurance Subsidiary, provided that such Debt is incurred in the ordinary course of business consistent with past practices,
(F) Debt consisting of Obligations to lenders to Construcciones Maritimas Mexicanas, S.A. de C.V., a Mexican corporation, and related unsecured guaranties by JRMSA or its Subsidiaries in the ordinary course of business consistent with past practices,
(G) Obligations under the Settlement Agreement, provided that such Obligations (other than interest payment Obligations) shall mature no earlier than on the third anniversary of the confirmation of a plan of reorganization in the Chapter 11 case of B&W,
(H) Debt in respect of letters of credit and Hedge Agreements issued by parties that are not Lender Parties; provided that, except as permitted under Section 5.02(a)(vi) or (x), such Debt shall be unsecured, and
(I) Debt under Bilateral Obligations.
(iii) Debt under the Asbestos Settlement Note.
(iv) unsecured Debt of JRMSA, JRMHI and JRMI, in an aggregate amount for all such Debt not to exceed $5,000,000.
(v) Notwithstanding any other provision contained in this Section 5.02(b), MII will not permit any other Loan Party toMI and its Subsidiaries, collectively, to create, incur, assume or suffer to exist any Debt, except:
(a) Obligations under this Agreement and the other Loan Documents;
(b) consolidated Debt incurred or assumed after the Closing Date which is secured by Liens permitted by Section 11.2(d), and extensions, renewals and refinancings thereof; provided, that in excess of $100 million in the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters;
(c) Debt of the Parent or Company to any Wholly-Owned Subsidiary or Debt of any Wholly-Owned Subsidiary to the Company, the Parent or another Wholly-Owned Subsidiary; provided that (i) the sum of excluding (A) the aggregate principal amount outstanding existing Debt of any such Debt owed by a foreign Subsidiary MI and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been pledged to the Administrative Agent in accordance with the terms of the Guaranty and Pledge Agreement;
(d) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
(e) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long its Subsidiaries as the principal amount thereof is not increased;
(f) Suretyship Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions permitted under Section 11.4;
(g) up to $2,000,000 in the aggregate of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitions;
(h) convertible Debt issued by Parent, so long as (i) the stated maturity of such Debt shall be a date not earlier than six months after the stated maturity date of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 shown on the date December 31, 2002 balance sheet of measurement, MII and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenantsits Consolidated Subsidiaries, (B) no restrictive covenants any Debt extending the maturity of, or refunding or refinancing (including reasonable fees, costs and expenses incurred in connection with respect to incurrencesuch refunding or refinancing), existence in whole or making of liensin part, indebtedness or restricted payments and any Debt described in clause (CA) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (ivv));
, (iC) Suretyship Liabilities with respect the MII Loan made to BWXT, (AD) Debt otherwise permitted under this Section 11.1, the Asbestos Settlement Note and (BE) Debt undrawn letters of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Partycredit, but only including Advances made to BWXT under the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) of Section 11.10Facilities); and
(k) other Debt, in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,000.
Appears in 1 contract
Sources: Omnibus Credit Agreement (McDermott International Inc)
Debt. NotIncur, and not permit any other Loan Party assume, guarantee or otherwise become or remain directly or indirectly liable with respect to, create, incur, assume or suffer to exist any Debt, exceptexcept for:
(a) Obligations Debt incurred or created hereunder and under this Agreement and the other Loan DocumentsDocuments (including Debt created under Section 2.09);
(b) Debt incurred outstanding on (or assumed after made pursuant to binding commitments existing on) the Closing Effective Date which is secured by Liens permitted by Section 11.2(d), as set forth on Schedule 6.01(b) and extensions, renewals and refinancings Permitted Refinancings thereof; provided, that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters;
(c) (i) Debt incurred or assumed by the Company or any of the Parent Restricted Subsidiaries for the purpose of financing (except with respect to the equipment and fixed assets set forth on Schedule 6.01(c), within 180 days of the applicable acquisition, lease, construction or Company to improvement) all or any Wholly-Owned Subsidiary part of the cost of acquiring, leasing, constructing or Debt improving any equipment or fixed asset (including through Capital Leases) (whether through the direct purchase of assets or the Equity Interests of any Wholly-Owned Subsidiary Person owning such assets) and (ii) Permitted Refinancings thereof; provided that the aggregate principal amount at any time outstanding of Debt incurred pursuant to this paragraph (c) shall not exceed $150,000,000;
(d) intercompany Debt among the Company, the Parent or another Wholly-Owned SubsidiaryCompany and its Subsidiaries; provided that (ix) upon request of the sum of Administrative Agent any such Debt owed to a Loan Party shall be evidenced by a promissory note pledged and delivered to the Administrative Agent as additional security for the Obligations, together with an appropriate allonge or note power, (Ay) the aggregate principal amount outstanding of with respect to any such Debt owed by a foreign Loan Party to a Subsidiary and (B) that is not a Loan Party, such Debt shall be subordinated in right of payment to the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition Obligations pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000the Affiliate Subordination Agreement, and (iiz) any such Debt owed by a foreign Subsidiary corresponding Investment shall be evidenced permitted by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been pledged to the Administrative Agent in accordance with the terms of the Guaranty and Pledge Agreement;
Sections 6.07(c), (dr) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation(t);
(e) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the of Subsidiaries that are not Loan Parties in an aggregate principal amount thereof is outstanding at any time not increasedto exceed the Dollar equivalent of $150,000,000;
(f) Suretyship Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions permitted under Section 11.4;
(g) up to $2,000,000 in the aggregate Debt consisting of (i) Acquired the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(i) Debt assumed in Acquisitions permitted under Section 11.4 and connection with Permitted Acquisitions; provided, that, (iix) such Debt secured by property acquired by a Loan Party and assumed by such Loan Party was not incurred in transactions which do not constitute Acquisitions;
(h) convertible Debt issued by Parent, so long as (i) the stated maturity contemplation of such Debt shall be a date not earlier than six months after the stated maturity date of the Loans as of the date of issuancePermitted Acquisition, (iiy) no mandatory redemption requirements both immediately prior and after giving effect to maturity other than upon a Change of Control or any Debt incurred pursuant to other customary event risk featuresthis clause (g), (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that and (z) the Company is and the Restricted Subsidiaries shall be in pro forma compliance with all the financial ratios and restrictions covenants set forth in Section 11.12 6.13 or Section 6.14, as applicable, determined on a pro forma basis (A) with respect to Section 6.13, as of the last day of the most recently ended four fiscal quarters of the Company for which financial statements have been delivered pursuant to Section 5.01(a) or 5.01(b), as applicable, and (B) with respect to Section 6.14, as of the date of measurementthereof, and (ii) any Permitted Refinancing thereof;
(h) [reserved];
(i) Debt representing deferred compensation, severance and health and retirement benefits or the equivalent thereof to employees, directors, management and consultants of the Company or the Restricted Subsidiaries incurred in the ordinary course of business;
(j) Debt consisting of obligations with respect to indemnification, the adjustment of the purchase price (including customary earnouts) or similar adjustments incurred in connection with a Permitted Acquisition or any other Investment or Disposition expressly permitted hereunder;
(i) Debt arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided that such Debt is extinguished within 5 Business Days of its incurrence and (ii) Debt in respect of credit card processing agreements, automatic clearinghouse arrangements, overdraft protections and similar arrangements in each case in connection with cash management and deposit accounts and in the ordinary course of business; provided that any such Debt (x) (other than credit card processing agreements or similar arrangements) is owed to the financial institutions providing such arrangements (or any Affiliate thereof) and (y) is extinguished within 30 days of its incurrence;
(l) Debt incurred by the Company or any Restricted Subsidiary constituting reimbursement obligations with respect to letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments, in each case, issued or created in the ordinary course of business, including in respect of workers’ compensation claims, health, disability or other employee benefits (including with respect to immediate family members of employees, directors or members of management) or property, casualty or liability insurance or self-insurance or other Debt with respect to reimbursement-type obligations regarding workers compensation claims or obligations referred to in paragraph (m) below, letters of credit in the nature of a security deposit (or similar deposit or security) given to a lessor under an operating lease of Real Estate under which such Person is lessee, and letters of credit in connection with the maintenance of, or pursuant to the requirements of, environmental or other permits or licenses from Governmental Authorities, and any refund, replacement, refinancing or defeasance of any of the foregoing;
(m) obligations in respect of surety, stay, customs and appeal bonds, performance bonds and performance and completion guarantees and similar obligations provided by the Company or any of the Restricted Subsidiaries, in each case, issued or created in the ordinary course of business and consistent with past practice;
(n) Debt arising under Swap Agreements not incurred for purposes of speculation;
(o) Debt consisting of the accretion of original issue discount with respect to Permitted Convertible Notes;
(p) Guarantees of Debt of the Company or any Subsidiary, which Debt is otherwise permitted hereunder; provided that (x) if such Debt is subordinated to the Obligations, such guarantee shall be subordinated to the same extent and (y) no such Guarantee by a Loan Party shall be permitted under this paragraph (p) of Debt of a subsidiary that is not a Loan Party, other than Guarantees constituting an Investment permitted under Section 6.07;
(q) Debt owing to current or former officers, directors, managers, consultants or employees of the Company or immediate family members to finance the purchase or redemption of Equity Interests of the Company (or any direct or indirect parent of the Company) permitted by Section 6.03(a) and Permitted Refinancings thereof;
(r) Debt of the Company or any Restricted Subsidiary owing to any joint venture (regardless of the form of legal entity) that is not a subsidiary arising in the ordinary course of business of the Company and its subsidiaries in connection with the cash management operations (including with respect to intercompany self-insurance arrangements); and
(s) Debt of any Loan Party (including Permitted Convertible Notes), if at the time of issuance or incurrence thereof:
(i) no Default or Event of Default then exists or would result therefrom;
(ii) such Debt does not have a scheduled maturity earlier than 91 days after the Maturity Date in effect at the time of issuance or incurrence of such Debt (other than an earlier maturity date for customary fundamental change, make-whole fundamental change, change of control or other similar event risk provisions or customary bridge financings which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for a maturity date earlier than 91 days after the Maturity Date), provided that for the avoidance of doubt, any provision of Permitted Convertible Notes (x) providing for Satisfaction of Conversion Obligation thereof or (y) permitting cash interest shall, in each case, not cause the Permitted Convertible Notes to fail to satisfy the provisions of this clause (ii);
(iii) such Debt does not have any mandatory redemption, prepayment, amortization, sinking fund or similar obligations prior to the Maturity Date (other than pursuant to (x) fundamental change, make-whole fundamental change, change of control or other similar event risk provisions and, in the case of term loans or senior notes that are not convertible into Equity Interests only, customary asset sale (or casualty or condemnation event), extraordinary receipts and/or (solely in the case of term loans) excess cash flow offer or repayment provisions and, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Debt permitted hereunder which meets the requirements of this clause and customary asset sale (or casualty or condemnation event) repayment provisions, and (y) in the case of term loans, nominal amortization requirements not to exceed 1% per annum of the initial aggregate principal amount of such Debt), provided that for the avoidance of doubt, any provision of Permitted Convertible Notes (x) providing for Satisfaction of Conversion Obligation thereof or (y) permitting cash interest shall, in each case, not cause the Permitted Convertible Notes to fail to satisfy the provisions of this clause (iii);
(iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit applicable definitive documentation for such Debt are not more materially restrictive, taken as a whole, than the covenants and events of default set forth in this Agreement (it being understood and agreed as determined by the Company in good faith), except for (x) provisions applicable only to periods after the Maturity Date in effect at the time of effectiveness of the applicable definitive documentation for such Debt, (y) provisions related to any equity provisions of such Debt or (z) terms that are customary market terms for Debt that has of such type as reasonably determined by the Borrower Representative;
(v) to the extent such Debt is subordinated, the terms of such Debt provide for customary payment or lien subordination, as applicable, to the Obligations as reasonably determined by the Administrative Agent in good faith;
(vi) which Debt:
(A) no financial covenants, may be unsecured; or
(B) no restrictive covenants secured; provided that if such Debt is secured:
(1) prior to the Fixed Asset Release Event, to the extent such Debt is secured by assets of the Company and its Subsidiaries constituting Collateral, the Lien on such Collateral securing such Debt shall be junior to the Lien on such Collateral securing the Obligations;
(2) after the Fixed Asset Release Event, (i) to the extent such Debt is secured by assets of the Company and its Subsidiaries constituting ABL Collateral, the Lien on such ABL Collateral securing such Debt shall be junior to the Lien on such ABL Collateral securing the Obligations and (ii) to the extent such Debt is secured by assets of the Company and its Subsidiaries constituting Fixed Assets, the Obligations shall be secured by a Lien on such Fixed Assets, which Lien may be junior to the Lien on such Fixed Assets securing such Debt;
(3) if secured by a Lien on ABL Collateral or Fixed Assets, at the time of the entering into of any such Debt, an Acceptable Intercreditor Agreement shall have been entered into and shall be in full force and effect and the Loan Parties shall have complied with respect their obligations under Section 5.13(c), which shall provide, (I) in connection with any Debt (other than, after the Fixed Asset Release Event, a Fixed Asset Facility), inter alia, that the Administrative Agent, for the benefit of the Secured Parties, shall retain a first priority lien on all Collateral or (II) in connection with any Fixed Asset Facility entered into after the Fixed Asset Release Event, inter alia, that the Administrative Agent, for the benefit of the Secured Parties, shall retain a first priority lien on all ABL Collateral and shall have a second priority lien on the Fixed Assets securing such Fixed Asset Facility;
(4) prior to incurrencethe Fixed Asset Release Event, existence such Debt shall not be secured by any Intellectual Property or making by the Equity Interests of liensany Subsidiary the assets of which are comprised primarily of Intellectual Property; provided that if after the Fixed Asset Release Event such Debt is secured by any Intellectual Property or by the Equity Interests of any Subsidiary the assets of which are comprised primarily of Intellectual Property, indebtedness the Obligations shall be secured by a Lien on such Intellectual Property and Equity Interests, which Lien may be junior to the Lien on such Intellectual Property and Equity Interests securing such Debt; and
(5) the aggregate principal amount of all such secured Debt shall not exceed the greater of (A) $2,000,000,000 at any time outstanding and (B) an amount such that after giving pro forma effect to the incurrence of such Debt, the Secured Leverage Ratio is equal to or restricted payments and less than 1.50 to 1.00.
(C) dollar thresholds with respect may be guaranteed on a like basis by the other Loan Parties; and
(vii) such Debt shall be in an aggregate principal amount not to exceed the greater of (A) $5,000,000,000 at any events time outstanding and (B) an amount such that after giving pro forma effect to the incurrence of default such Debt, the Total Leverage Ratio is equal to or less than 4.00 to 1.00. (all unsecured Debt incurred or issued under this clause (s) is referred to as “Permitted Additional Unsecured Indebtedness” and all secured Debt incurred or issued under this clause (s) is referred to as “Permitted Additional Secured Indebtedness”);
(t) Permitted Convertible Notes issued by the Company (which may be guaranteed on a like basis by the other Loan Parties), and Guarantees by any Loan Party of Permitted Convertible Notes issued by Rivian Parent, in each case if at the time of issuance or incurrence thereof:
(i) no Default or Event of Default then exists or would result therefrom;
(ii) such Permitted Convertible Notes do not have a scheduled maturity earlier than 91 days after the Maturity Date in effect at the time of judgments and defaults under issuance or incurrence of such Permitted Convertible Notes (other indebtedness no lower than those an earlier maturity date for customary fundamental change, make-whole fundamental change, change of control or other similar event risk provisions or customary bridge financings which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for a maturity date earlier than 91 days after the Maturity Date), provided that for the avoidance of doubt, any provision of Permitted Convertible Notes (x) providing for Satisfaction of Conversion Obligation thereof or (y) permitting cash interest shall, in each case, not cause the Permitted Convertible Notes to fail to satisfy the provisions of this Agreement for clause (ii);
(iii) such categories Permitted Convertible Notes do not have any mandatory redemption, prepayment, amortization, sinking fund or similar obligations prior to the Maturity Date (other than pursuant to fundamental change, make-whole fundamental change, change of defaultscontrol or other similar event risk provisions and, will satisfy in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Permitted Convertible Notes permitted hereunder which meets the requirements of this clause and customary asset sale (ivor casualty or condemnation event) repayment provisions), provided that for the avoidance of doubt, any provision of Permitted Convertible Notes (x) providing for Satisfaction of Conversion Obligation thereof or (y) permitting cash interest shall, in each case, not cause the Permitted Convertible Notes to fail to satisfy the provisions of this clause (iii);
(iiv) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1the covenants and events of default set forth in the applicable definitive documentation for such Permitted Convertible Notes are no more restrictive, taken as a whole, than the covenants and (B) Debt events of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations default set forth in this Section 11.1 Agreement (as determined by the Company in good faith), except for (x) provisions applicable only to periods after the Maturity Date in effect at the time of effectiveness of the applicable definitive documentation for such Permitted Convertible Notes and (iiy) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and provisions related to any equity provisions of such Debt of other Persons shall count against such limitationsPermitted Convertible Notes;
(jv) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) of Section 11.10); and
(k) other Debt, in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,000.extent such Permitted Convertibl
Appears in 1 contract
Debt. Not, and not permit Neither the Company nor any other Loan Party to, Material Subsidiary will create, incur, assume or suffer permit to exist any Debt, except:
(ai) Obligations Debt created under this Agreement and the other Loan Documents;
(bii) Debt incurred existing or assumed after committed on the Closing Date which is secured by Liens permitted by Section 11.2(d), date hereof and listed in Schedule 5.09 hereto or specifically identified as relating to Schedule 5.09 hereto in the Disclosure Materials and extensions, renewals renewals, replacements 21 and refinancings thereof; provided, that the aggregate amount of all any such Debt at any time that do not increase the outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quartersprincipal or committed amount thereof;
(ciii) Debt of the Parent or Company to any Wholly-Owned Subsidiary or and Debt of any Wholly-Owned Material Subsidiary to the Company, the Parent or another Wholly-Owned Subsidiary; provided that (i) the sum of (A) the aggregate principal amount outstanding of any such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been pledged to the Administrative Agent in accordance with the terms of the Guaranty and Pledge Agreementother Subsidiary;
(d) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
(eiv) Debt described on Schedule 11.1 and of the Company or any extension, renewal Subsidiary to NNC or refinancing thereof so long as the principal amount thereof is not increased;
(f) Suretyship Liabilities arising with respect to customary indemnification obligations in favor any Subsidiary of sellers and assumptions of obligations NNC (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 the Company and purchasers in connection with Dispositions permitted under Section 11.4;
(g) up to $2,000,000 in the aggregate of (i) Acquired its Subsidiaries), provided that such Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt is not secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitions;
(h) convertible Debt issued by Parent, so long as (i) the stated maturity of such Debt shall be a date not earlier than six months after the stated maturity date any assets of the Loans as Company or any of the date its Subsidiaries and is subordinate in right of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect payment to the intended use of proceeds of such convertible Debt, with evidence that Notes on terms and conditions no less favorable to the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive Banks than those set forth in Exhibit H hereto;
(v) Guarantees by the Credit Agreement Company of Debt of any Material Subsidiary or of NNC or any Subsidiary of NNC (it being understood other than the Company and agreed its Subsidiaries) and Guarantees by any Material Subsidiary of Debt of the Company or any other Material Subsidiary; provided that Guarantees by the Company of Debt that has of NNC or any Subsidiary of NNC (Aother than the Company and its Subsidiaries) no financial covenants, (B) no restrictive covenants with respect shall be subject to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv)Section 5.12(j);
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (Bvi) Debt of Persons other than Loan Parties the Company or any Material Subsidiary as an account party in respect of trade or performance letters of credit issued to support obligations entered into in the ordinary course of business;
(vii) Debt of the Company or any Material Subsidiary secured by accounts receivable, or rights in respect thereof or incurred pursuant to any receivables securitization (including, if applicable, any net investment amounts); provided that would be permitted the aggregate principal amount thereof outstanding, together with the aggregate amount of outstanding accounts receivable or rights in respect thereof that have been transferred, sold or disposed of, shall not at any time exceed $750,000,000;
(viii) Guarantees in respect of vendor financings and related securitizations entered into in the ordinary course of business;
(ix) obligations under this Section 11.1 if such Person were a Loan Party"take-or-pay" or minimum purchase contracts existing on the Amendment No. 2 Effective Date and disclosed in the Disclosure Materials, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such constituting Guarantees of Debt of the other Persons shall count against such limitationsparties;
(jx) Suretyship Liabilities other unsecured Debt of the Company and the Borrower in an aggregate principal amount not exceeding $1,000,000,000, less the amount of Guarantees permitted pursuant to clause (viii) above, at any time outstanding;
(xi) other secured Debt of the Company and the Borrower and Debt of any other Material Subsidiary in an aggregate principal amount which, when added to the aggregate market value of collateral securing obligations under Hedging Agreements pursuant to Section 5.10(vi), does not exceed $500,000,000; provided that constitute Investments permitted under Section 11.10 (unless only the aggregate outstanding principal amount of Debt of Material Subsidiaries permitted by this clause (b) of Section 11.10)shall not exceed $217,000,000 at any time; and
(kxii) other DebtDebt not otherwise permitted hereunder, in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,000issuance of which constitutes a Capital Markets Event.
Appears in 1 contract
Debt. NotNo Credit Party shall, and not nor shall it permit any other Loan Party Subsidiary to, directly or indirectly, create, incur, assume assume, guarantee or suffer to exist otherwise become or remain directly or indirectly liable with respect to, any Debt, exceptexcept for:
(a) Obligations Debt and Letter of Credit Liabilities under this Agreement and the other Loan Financing Documents;
(b) Debt incurred or assumed after outstanding on the Closing Date which is secured by Liens permitted by Section 11.2(d), date of this Agreement and extensions, renewals and refinancings thereof; provided, that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quartersset forth on Schedule 5.1;
(c) Debt incurred or assumed for the purpose of financing all or any part of the Parent or Company cost of acquiring any fixed asset (including through Capital Leases), in an aggregate principal amount at any time outstanding not greater than $1,500,000;
(d) Debt, if any, arising under Swap Contracts;
(e) intercompany Debt arising from loans made by (i) Borrower to its Wholly-Owned Domestic Subsidiaries to fund working capital requirements of such Subsidiaries in the Ordinary Course of Business and (ii) any Wholly-Owned Subsidiary or Debt of Borrower to Borrower; provided, however, that upon the request of Administrative Agent at any Wholly-Owned Subsidiary to the Companytime, the Parent or another Wholly-Owned Subsidiary; provided that (i) the sum of (A) the aggregate principal amount outstanding of any such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance promissory notes having terms reasonably satisfactory to Administrative Agent, the sole originally executed counterparts of which shall be pledged and delivered to Administrative Agent, for the benefit of Administrative Agent which has been pledged to and Lenders, as security for the Administrative Agent in accordance with the terms of the Guaranty and Pledge Agreement;
(d) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
(e) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increasedObligations;
(f) Suretyship Liabilities arising with Debt of a Person or Debt attaching to assets of a Person that, in either case, becomes a Subsidiary or Debt attaching to assets that are acquired by Borrower or any of its Subsidiaries, in each case after the Closing Date as the result of a Permitted Acquisition, provided, that (i) such Debt existed at the time such Person became a Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof and (ii) such Debt is not guaranteed in any respect to customary indemnification obligations in favor by Borrower or any of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions permitted under Section 11.4its Subsidiaries;
(g) up Debt in respect of bid, performance and surety bonds, including guarantees or obligations of the Credit Parties with respect to letters of credit supporting such bid, performance and surety bonds or other forms of credit enhancement supporting performance obligations under services contracts, workers’ compensation claims, self-insurance obligations, unemployment insurance, health, disability and other employee benefits or property, casualty or liability insurance, in each case incurred in the Ordinary Course of Business, not to exceed (when combined with amounts outstanding under Section 5.3(e)) $2,000,000 500,000 in the aggregate of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitionsat any time outstanding;
(h) convertible unsecured Debt issued by Parentarising from agreements to provide for indemnification, so long as (i) the stated maturity adjustment of such Debt shall be purchase price, earn-outs or other similar obligations, in each case, incurred in connection with a date not earlier than six months after the stated maturity date of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control Permitted Acquisition or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred Asset Disposition permitted hereunder and be continuing either immediately before or immediately after such issuance, after giving effect subject to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions limits set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv)5.8(b)(xi);
(i) Suretyship Liabilities with respect unsecured Debt arising from agreements to (A) Debt otherwise permitted under this Section 11.1provide for milestone or royalty payments, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within such obligations are considered Debt under GAAP, incurred in connection with a Permitted Acquisition and subject to the limitations limits set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) of Section 11.105.8(b)(xi); and
(kj) other Debt, unsecured Debt not to exceed $250,000 in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,000outstanding.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Pernix Therapeutics Holdings, Inc.)
Debt. NotCreate, and not incur, assume or suffer to exist, or permit any other Loan Party to, of its Subsidiaries to create, incur, assume or suffer to exist exist, any Debt, exceptDebt other than:
(a) Obligations under this Agreement and In the other case of the Borrower, Debt incurred pursuant to the Loan Documents;
(b) In the case of the Borrower, debt owed to any Wholly-Owned Subsidiary of the Borrower, and in the case of any of the Subsidiaries of the Borrower, Debt incurred owed to the Borrower or assumed after to a Wholly-Owned Subsidiary of the Closing Date which is Borrower; provided, that all such Debt owed by any Subsidiary to the Borrower shall be evidenced by a promissory note, such promissory note shall be pledged to the Administrative Agent pursuant to the terms of the Security Agreement or such other document (including, without limitation, the Note Assignment Agreement) and, in the case of Debt owed by any Subsidiary, there shall be no restrictions whatsoever on the ability of such Subsidiary to repay such Debt; and
(c) In the case of the Borrower and any of its Subsidiaries:
(i) Debt (A) secured by Liens permitted by Section 11.2(d)6.1(d) and (B) Capitalized Leases, and extensions, renewals and refinancings thereof; provided, that collectively not to exceed in the aggregate amount of all such Debt $500,000 at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quartersoutstanding;
(cii) Debt endorsement of negotiable instruments for deposit or collection or similar transactions in the Parent or Company to any Wholly-Owned Subsidiary or Debt ordinary course of any Wholly-Owned Subsidiary to business;
(iii) the CompanySurviving Debt;
(iv) Senior Subordinated Debt, the Parent or another Wholly-Owned Subsidiary; provided that (i) the sum of (A) principal and interest shall be payable or paid by the aggregate principal amount outstanding Borrower only in accordance with the terms and conditions of any such the applicable Subordinated Debt owed by a foreign Subsidiary Documents and (B) the aggregate Investments made after Borrower may, as required by the date hereof Senior Subordinated Debt Documents, cause its existing Subsidiaries and any Subsidiaries of the Company hereafter formed and/or acquired by the Company (or any domestic Subsidiary of the Company) to any foreign issue guaranties of the Borrower's Obligations under the Senior Subordinated Debt, which guaranties shall be substantially similar to the Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition Guaranty issued pursuant to Section 11.4 this Agreement, except that such guaranties will be subordinated to the Obligations of such Subsidiaries under the Subsidiary Guaranty or Guaranties issued or to pay a Signing be issued under this Agreement consistent with the subordination provisions set forth in the Convertible Senior Subordinated Note included in the Senior Subordinated Debt, will guaranty the Obligations of the Borrower under such Note and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall otherwise be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been pledged and the holder of such Note;
(v) Subordinated Debt, provided that principal shall be payable or paid by the Borrower subsequent to the maturity date of the Obligations under the Facilities with interest payments, if approved by the Required Lenders in connection with approval of the terms of such Subordinated Debt, payable prior to maturity on terms agreed to by the Required Lenders;
(vi) Debt (other than as borrowed hereunder) incurred or assumed in connection with Permitted Acquisitions or Permitted Club Acquisitions not to exceed in the aggregate $500,000 at any time outstanding.
(vii) Unsecured Debt incurred in connection with the conversion of the obligations under any Future Acquisition Puts into Debt of the Borrower or its Subsidiaries pursuant to the terms of the agreements governing such Future Acquisition Puts, provided that all of the Debt described in this clause (vii) constitutes Subordinated Debt; and
(viii) any Debt extending the maturity of, or refunding or refinancing, in whole or in part, the Debt referred to in this Section 6.2(c), provided that (A) the principal amount of such Debt shall not be increased above the principal amount thereof outstanding immediately prior to the refinancing (but, in respect of the Senior Subordinated Debt, may be increased to Eighteen Million Five Hundred Thousand ($18,500,000) Dollars in respect of the first refinancing of the Senior Subordinated Debt that exists on the Closing Date), and the direct and contingent obligors shall not be changed, as a result of or in connection with such extension, refunding or refinancing, except that any Subsidiary of the Company in existence at, or formed or acquired by the Company (or any Subsidiary of the Company) subsequent to, the date of any of such extension of the maturity of, or refunding or refinancing, in whole or in part, of the Senior Subordinated Debt, shall be permitted to guarantee such Debt as so extended, refunded or refinanced, to the same extent as such Subsidiaries are permitted to guarantee such Debt pursuant to Section 6.2(c)(iv) hereof, and no prepayment premium or penalty of any kind shall be incurred in connection therewith, and the terms thereof are no less favorable to the Borrower or the Lender Parties or the Administrative Agent (except as and to the extent set forth in respect of Senior Subordinated Debt under clause (viii)(B) below) than the terms of the refunded or refinanced Debt and the fees, expenses and other costs associated therewith are reasonably acceptable to the Administrative Agent in accordance the exercise of its reasonable discretion; (B) no amendment, modification or supplement to the terms of any Debt or any refinanced or refunded Debt shall be made except if and to the extent permitted under Section 6.13, but amendments and modifications to any replacement for the Senior Subordinated Debt which are not inconsistent with the terms of Section 6.13(b) shall be deemed acceptable to the Guaranty Lenders and Pledge Agreement;
the Administrative Agent; and (dC) Hedging Obligations incurred in favor with respect to the first refinancing of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
(e) the Senior Subordinated Debt described that exists on Schedule 11.1 and any extensionthe Closing Date, renewal or refinancing thereof so long as the principal amount thereof is not increased;
(f) Suretyship Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions permitted under Section 11.4;
(g) up to $2,000,000 in the aggregate replacement Debt shall at least equal the sum of (i) Acquired the principal amount then outstanding of such Senior Subordinated Debt assumed in Acquisitions permitted under Section 11.4 which is refinanced and (ii) Debt secured the fees, expenses and other costs payable by property acquired by a Loan Party and assumed by the Borrower or its Subsidiaries in connection with such Loan Party in transactions which do not constitute Acquisitions;
refinancing (h) convertible Debt issued by Parent, so long as (i) the stated maturity of such Debt shall be a date not earlier than six months after the stated maturity date of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect subject to the intended use limit of proceeds $18,500,000 of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (ivviii)(A) above));
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) of Section 11.10); and
(k) other Debt, in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,000.
Appears in 1 contract
Debt. Not, and not permit Neither such Borrower nor any other Loan Party to, create, incur, assume of its Subsidiaries shall incur or suffer to exist maintain any Debt, exceptother than:
(a) Obligations under this Agreement and the other Loan DocumentsObligations;
(b) Debt incurred or assumed after the Closing Date which is secured by Liens permitted by Section 11.2(d), and extensions, renewals and refinancings thereof; provided, that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quartersdescribed on Schedule 6.9;
(c) Guaranties permitted by Section 7.14;
(d) Capital Leases of Equipment and purchase money secured Debt of the Parent or Company incurred to any Wholly-Owned Subsidiary or Debt of any Wholly-Owned Subsidiary to the Companypurchase Fixed Assets; provided, the Parent or another Wholly-Owned Subsidiary; provided that (i) Liens securing the sum of (A) same attach only to the aggregate principal amount outstanding of any such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof Fixed Asset acquired by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds incurrence of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000such Debt, and (ii) any the aggregate amount of such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form (including Capital Leases) outstanding does not exceed at any time (A) during the period from the Closing Date through and substance reasonably satisfactory to including the Administrative Agent which has been pledged to first Anniversary Date, $10,000,000; (B) during the Administrative Agent in accordance with period from the terms of first Anniversary Date through and including the Guaranty second Anniversary Date, $15,000,000; and Pledge Agreement;
(dC) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;thereafter, $20,000,000.
(e) Debt evidencing a refunding, renewal or extension of the Debt described on Schedule 11.1 and any extension6.9; provided, renewal or refinancing thereof so long as that (i) the principal amount thereof is not increased, (ii) the Liens, if any, securing such refunded, renewed or extended Debt do not attach to any assets in addition to those assets, if any, securing the Debt to be refunded, renewed or extended, (iii) no Person that is not an obligor or guarantor of such Debt as of the Closing Date shall become an obligor or guarantor thereof and (iv) the terms of such refunding, renewal or extension are no less favorable to the applicable Borrower, the Administrative Agent or the Lenders than the original Debt;
(f) Suretyship Liabilities arising unsecured Debt of (i) a Borrower or Guarantor to any of its wholly-owned Subsidiaries; provided, however, that the aggregate amount of such Debt of all Borrowers and Guarantors to all Foreign Subsidiaries shall not exceed $2,500,000 at any time outstanding (excluding the amount of Debt outstanding pursuant to Section 7.15(l)), (ii) any wholly-owned Subsidiary to a Borrower or Guarantor; provided, however, that the aggregate amount of Debt of all Foreign Subsidiaries to all Borrowers and Guarantors (excluding the $48,000,000 of Debt of Manufacturers’ Services Singapore Pte Ltd. and MSL Overseas Finance B.V. to the Parent outstanding on the Closing Date), together with the aggregate amount of any payments made by the Parent under Guaranties with respect to customary indemnification obligations in favor of sellers Foreign Subsidiaries permitted to be entered into by Section 7.14, shall not exceed $2,000,000 at any time outstanding; (iii) any wholly-owned Foreign Subsidiary to any other wholly-owned Foreign Subsidiary; and assumptions of obligations (iv) any wholly-owned Domestic Subsidiary to any other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions permitted under Section 11.4wholly-owned Domestic Subsidiary;
(g) up unsecured Debt which is subordinated to the Obligations on terms acceptable to the Administrative Agent and the Majority Lenders and otherwise having terms and conditions acceptable to the Administrative Agent and the Majority Lenders in an aggregate principal amount not to exceed $2,000,000 in the aggregate of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitions10,000,000 at any time outstanding;
(h) convertible Debt issued by Parent, so long as of any Foreign Subsidiary (other than Debt outstanding pursuant to Section 7.15(f)) in an aggregate principal amount not to exceed (i) the stated maturity of such Debt shall be a date not earlier than six months after the stated maturity date of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds $1,500,000 with respect to any events single Foreign Subsidiary at any time outstanding and (ii) $5,000,000 in the aggregate for all Foreign Subsidiaries at any time outstanding; provided, that any such Debt of default as a result Foreign Subsidiary shall not be guaranteed by, or secured by any assets of, a Borrower, a Guarantor or a Domestic Subsidiary of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv))a Borrower or Guarantor;
(i) Suretyship Liabilities Debt of any Person assumed in connection with respect to (A) Debt otherwise the acquisition by a Borrower or any of its Subsidiaries of such Person permitted under this Section 11.17.11 or 7.12; provided, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and such acquired Person becomes a Subsidiary of such Borrower or Subsidiary upon consummation of such acquisition, (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt exists at the time such Person becomes a Subsidiary and was not created in anticipation of other Persons shall count against such limitationsacquisition, (iii) such Debt does not exceed $5,000,000 in the aggregate and (iv) any such Debt that does not consist of Capital Leases does not exceed $2,000,000 in the aggregate;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) of Section 11.10); and
(k) other Debt, in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,000.
Appears in 1 contract
Debt. NotThe Borrower will not, and will not permit any other Loan Party Subsidiary to, incur, create, incur, assume or suffer to exist any Debt, except:
(a) Obligations the Notes or other Indebtedness arising under this Agreement and the Loan Documents or any guaranty of or suretyship arrangement for the Notes or other Indebtedness arising under the Loan Documents;.
(b) Debt incurred associated with worker’s compensation claims, performance, bid, surety or assumed after similar bonds or surety obligations required by Governmental Requirements or third parties in connection with the Closing Date which is secured by Liens permitted by Section 11.2(d), and extensions, renewals and refinancings thereof; provided, that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as operation of the previous four Fiscal Quarters;Oil and Gas Properties.
(c) intercompany Debt of between the Parent Borrower and any Subsidiary or Company between Subsidiaries to the extent permitted by Section 9.05(g); provided that such Debt is not held, assigned, transferred, negotiated or pledged to any Person other than the Borrower or one of its Wholly-Owned Subsidiary Subsidiaries or Debt of any Wholly-Owned Subsidiary to the CompanyAdministrative Agent for the benefit of the Lenders, and, provided further, that any such Debt owed by either the Parent Borrower or another Wholly-Owned Subsidiary; a Guarantor shall be subordinated to the Indebtedness on terms set forth in the Guaranty Agreement or otherwise reasonably acceptable to the Administrative Agent.
(d) endorsements of negotiable instruments for collection in the ordinary course of business.
(e) purchase money Debt and Capital Leases not to exceed an aggregate amount at any one time equal to $5,000,000.
(f) Senior Notes and any guarantees thereof (and any Permitted Refinancing Debt with respect thereto), provided that (i) at the sum of time such Debt is incurred (A) the aggregate principal amount outstanding no Event of any such Debt owed by a foreign Subsidiary Default has occurred and is then continuing and (B) no Event of Default would result from the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been pledged to the Administrative Agent in accordance with the terms of the Guaranty and Pledge Agreement;
(d) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
(e) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased;
(f) Suretyship Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions permitted under Section 11.4;
(g) up to $2,000,000 in the aggregate of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitions;
(h) convertible Debt issued by Parent, so long as (i) the stated maturity incurrence of such Debt shall be a date not earlier than six months after the stated maturity date of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use incurrence thereof (and any concurrent repayment of Debt with the proceeds of such convertible incurrence), (ii) immediately after the incurrence of such Debt, the Borrowing Base shall be adjusted in accordance with evidence that Section 2.07(f) and prepayment shall be made to the Company extent required by Section 3.04(c)(iv), (iii) at the time such Debt is in pro forma compliance with all incurred, such Debt does not have any scheduled amortization prior to one year after the financial ratios and restrictions set forth in Section 11.12 on the date of measurementMaturity Date, and (iv) at the restrictive covenants and events of default relating to time such Debt are generally no more restrictive is incurred, such Debt does not mature sooner than those set forth in one year after the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenantsMaturity Date, (Bv) no restrictive covenants with respect to incurrence, existence or making such Debt and any guarantees thereof are on market terms for issuers of liens, indebtedness or restricted payments similar size and credit quality given the then prevailing market conditions and (Cvi) dollar thresholds with respect such Debt does not have any mandatory prepayment or redemption provisions (other than customary change of control or asset sale tender offer provisions) which would require a mandatory prepayment or redemption in priority to the Indebtedness.
(g) other Debt not to exceed an aggregate amount outstanding at any events time equal to $5,000,000.
(h) any guarantee by any Obligor of default as a result of judgments and defaults any Debt permitted to be incurred under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv));Section 9.02.
(i) Suretyship Liabilities with respect supported by a Letter of Credit, in a principal amount not to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt exceed the face amount of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt Letter of other Persons shall count against such limitations;Credit.
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 Debt (unless only permitted by clause if any), interest (bincluding post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) of Section 11.10); and
through (kg) other Debt, in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,000.
Appears in 1 contract
Debt. Not, and not permit any other Loan Party to, Not create, incur, assume or suffer to exist any Debt, except:
(a) Obligations under this Agreement and the other Loan Documents;
(b) Debt incurred or assumed after the Closing Date which is secured by Liens permitted by Section 11.2(d), and extensions, renewals and refinancings thereof; provided, provided that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters$500,000;
(c) Debt of the Parent or Company any Borrower to any domestic Wholly-Owned Subsidiary or Debt of any domestic Wholly-Owned Subsidiary to the Company, the Parent any Borrower or another domestic Wholly-Owned Subsidiary; provided that (i) the sum of (A) the aggregate principal amount outstanding of any such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000Debt, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand promissory note in form and substance reasonably satisfactory to the Administrative Agent which has been Lender and pledged and delivered to Lender pursuant to the Administrative Agent Collateral Documents as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations of Borrowers hereunder in accordance with the terms of the Guaranty and Pledge Agreementa manner reasonably satisfactory to Lender;
(d) Subordinated Debt;
(e) Hedging Obligations approved by Lender and incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
(ef) The Intercompany Notes;
(g) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased;
(fh) Suretyship the Debt to be Repaid (so long as such Debt is repaid on the Closing Date with the proceeds of the initial Loans hereunder); and
(i) Contingent Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions dispositions permitted under Section 11.4;
(g) up to $2,000,000 in the aggregate of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitions;
(h) convertible Debt issued by Parent, so long as (i) the stated maturity of such Debt shall be a date not earlier than six months after the stated maturity date of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv));
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) of Section 11.10); and
(k) other Debt, in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,00011.5.
Appears in 1 contract
Sources: Loan and Security Agreement (Kingsway Financial Services Inc)
Debt. NotSuch Credit Party will not, and will not permit any other Loan Party Subsidiary to, directly or indirectly, create, incur, assume assume, guarantee or suffer to exist otherwise become or remain directly or indirectly liable with respect to, any Debt, exceptDebt except for:
(a) Debt and all other Obligations under this Agreement and the other Loan Financing Documents;
(b) Debt incurred or assumed after outstanding on the Closing Date which is secured by Liens date of this Agreement as set forth in the Information Certificate (other than Debt permitted by Section 11.2(d), and extensions, renewals and refinancings thereof; provided, that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent pursuant to clause (2.0%d) of Parent’s consolidated revenues as of this Section 5.1) to the previous four Fiscal Quartersextent set forth therein;
(c) Debt of the Parent Borrowers incurred or Company assumed for the purpose of financing all or any part of the cost of acquiring any fixed asset (including through Capital Leases) and related costs and refinancings thereof, in an aggregate principal amount at any time outstanding not greater than $1,500,000;
(d) intercompany Debt arising from loans made by a Borrower to (i) any other Borrower or any Domestic Wholly-Owned Subsidiary or of any Borrower and (ii) its Foreign Subsidiaries which are Wholly-Owned Subsidiaries in an aggregate amount under this clause (ii) not to exceed $1,000,000 at any time outstanding; provided, however, in each case, such Debt shall be evidenced by promissory notes having terms reasonably satisfactory to Collateral Agent, the sole originally executed counterparts of which shall be pledged to the Collateral Agent and delivered to the First Lien Agent as contractual representative for the Collateral Agent pursuant to the Second Lien Intercreditor Agreement (or, following the Discharge of all First Lien Debt, the Collateral Agent), as security for the Obligations;
(e) unsecured Debt of any Wholly-Owned Subsidiary Borrower not to exceed $1,000,000 in the aggregate at any time outstanding which is subordinated to the CompanyObligations in a manner reasonably satisfactory to Administrative Agent;
(f) net obligations to a counterparty under any Swap Contract permitted pursuant to the First Lien Credit Agreement;
(g) Debt consisting of Contingent Obligations to the extent permitted pursuant to Section 5.3;
(h) the First Lien Debt and refinancings and replacements thereof, to the Parent or another Wholly-Owned Subsidiaryextent permitted pursuant to the terms of the Second Lien Intercreditor Agreement;
(i) Debt arising from Holdings Loans;
(j) Debt of COMSYS IT incurred pursuant to the PS Year One Earnout in an aggregate amount not to exceed $2,500,000;
(k) Debt of COMSYS IT incurred pursuant to the PS Year Two Earnout in an aggregate amount not to exceed $2,500,000;
(l) Debt of COMSYS IT incurred pursuant to the PS Year Three Earnout in an aggregate amount not to exceed $2,500,000;
(m) Debt of COMSYS IT incurred pursuant to the PS Additional Earnout in an aggregate amount not to exceed $750,000;
(n) Debt evidenced by Earnouts incurred in connection with Permitted Acquisitions; provided and
(o) intercompany Debt of COMSYS IT constituting the Holdings Intercompany Loan, provided, that (i) the sum of (A) the aggregate principal amount outstanding of any all interest on such Debt owed by a foreign Subsidiary shall be payable in kind (and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding not in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000cash), and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note promissory note, all payments under which are subordinated to the prior indefeasible payment in form full in cash of the Obligations in manner acceptable to Collateral Agent and substance which otherwise contains terms reasonably satisfactory to Collateral Agent, the Administrative Agent sole originally executed counterpart of which has been shall be pledged to the Administrative Collateral Agent in accordance with and delivered to the terms of First Lien Agent as contractual representative for the Guaranty and Pledge Agreement;
(d) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
(e) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased;
(f) Suretyship Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions permitted under Section 11.4;
(g) up to $2,000,000 in the aggregate of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitions;
(h) convertible Debt issued by Parent, so long as (i) the stated maturity of such Debt shall be a date not earlier than six months after the stated maturity date of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or Collateral Agent pursuant to other customary event risk featuresthe Second Lien Intercreditor Agreement (or, (iii) no Unmatured Event following the Discharge of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible all First Lien Debt, with evidence that the Company is in pro forma compliance with all Collateral Agent), as security for the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv));
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) of Section 11.10); and
(k) other Debt, in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,000Obligations.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Comsys It Partners Inc)
Debt. Not, and not permit any other Loan Party to, Not create, incur, assume or suffer to exist any Debt, except:
(ai) Obligations under this Agreement and the other Loan Documents;
(bii) Debt incurred or assumed after the Closing Date which is secured by Liens permitted by Section 11.2(d11.2(iv), and extensions, renewals and refinancings refinancing thereof; provided, provided that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters$2,500,000;
(ciii) Debt of the Parent or Company Borrower to any domestic Wholly-Owned Subsidiary or Debt of any domestic Wholly-Owned Subsidiary to the Company, the Parent Borrower or another domestic Wholly-Owned Subsidiary; provided that (i) the sum of (A) the aggregate principal amount outstanding of any such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been and pledged and delivered to Agent pursuant to the Administrative Agent Collateral Documents as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations of Borrower hereunder in accordance with a manner reasonably satisfactory to Agent. For the terms avoidance of doubt all day to day intercompany transactions which are netted on the Guaranty and Pledge Borrower’s financial statements are not Debt for purposes of this Agreement;
(div) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof or other Hedging Obligations involving any commodity swap agreement, Forward Contract, future contract, foreign currency hedging obligations or similar instrument designed to protect against fluctuations in commodity prices entered into by any Loan Party in the normal course of its business for bona fide hedging purposes and not for speculation;
(ev) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased;
(fvi) Suretyship the Debt to be Repaid (so long as such Debt is repaid on the Closing Date with the proceeds of the initial Loans hereunder);
(vii) Contingent Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions dispositions permitted under Section 11.411.5; 72
(viii) Debt incurred in the ordinary course of business under surety and appeal bonds, performance bonds, bid bonds, appeal bonds, and similar obligations;
(gix) up to $2,000,000 in the aggregate endorsements of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitionsinstruments or other payment items for deposit;
(hx) convertible unsecured Debt issued of Goldline in the form of loans made by Parent, so long as Borrower to Goldline in an aggregate principal amount outstanding at any time not to exceed $2,000,000;
(ixi) Permitted Secured Metals Lease Obligations in an aggregate principal amount outstanding at any time not to exceed $200,000,000; provided that an aggregate principal amount outstanding of Permitted Secured Metals Lease Obligations in excess of $200,000,000 shall not be a violation of this Section 11.1(xi) if cured within one business day after receiving notice by the stated maturity Agent of such Debt shall be a date excess;
(xii) Unsecured Metals Lease Obligations in an aggregate principal amount outstanding at any time not earlier than six months after to exceed $65,000,000; provided that the stated maturity date of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds aggregate principal amount outstanding at any time of such convertible Debt, with evidence that the Company is Unsecured Metals Lease Obligations may exceed such limit by not more than 10% for a period of up to five (5) consecutive Business Days on not more than five (5) separate occasions in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and any Fiscal Year (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv)which shall not be consecutive);
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (Bxiii) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only AM & ST Associates and Borrower in an aggregate principal amount not to exceed $3,000,000 incurred for the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt purpose of other Persons shall count against such limitationsacquiring equipment;
(jxiv) Suretyship Liabilities that constitute Investments permitted Debt of a special purpose securitization vehicle reasonably acceptable to Agent incurred pursuant to the Trust Securitization in an aggregate principal amount outstanding at any time which, together with all Debt outstanding under Section 11.10 (unless only permitted by clause (bxv) below, shall not exceed $100,000,000;
(xv) Debt of Section 11.10)a special purpose securitization vehicle reasonably acceptable to Agent under a Warehouse Facility in an aggregate principal amount outstanding at any time which, together with all Debt outstanding under clause (xiv) above, shall not exceed $100,000,000;
(xvi) Debt which may arise under the SCMI Ownership Based Financing in respect of the applicable repurchase obligations;
(xvii) Debt of Excluded Subsidiaries which is non-recourse to the Loan Parties in an aggregate amount not in excess of $500,000 at any time outstanding;
(xviii) Debt of Borrower owed to ▇▇▇▇▇▇▇ Leasing Corporation in an aggregate principal amount not to exceed $10,000,000 incurred for the purpose of leasing equipment used at the A-M Global Logistics Las Vegas, Nevada facility; and
(kxix) other unsecured Debt, in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,0001,000,000.
Appears in 1 contract
Debt. Not, and not permit any other Loan Party to, create, incur, assume or suffer to exist any Debt, except:
(a) Obligations under this Agreement and the other Loan Documents;
(b) Debt incurred or assumed after the Closing Date which is secured by Liens permitted by Section 11.2(d), and extensions, renewals and refinancings thereof; provided, provided that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of $2,500,000, provided, however, the previous four Fiscal Quartersforgoing limit shall not include a Sale Leaseback if such Sale Leaseback is consummated in an arm’s-length manner on market terms and conditions;
(c) Debt of the Parent or Company to any domestic Wholly-Owned Subsidiary or Debt of any domestic Wholly-Owned Subsidiary to the Company, the Parent Company or another domestic Wholly-Owned Subsidiary; provided that (i) that, upon the sum reasonable request of (A) the aggregate principal amount outstanding of any Administrative Agent, such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary 46 shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been pledged and the obligations under such demand note shall be subordinated to the Obligations of the Company hereunder in a manner reasonably satisfactory to the Administrative Agent in accordance with the terms of the Guaranty and Pledge AgreementAgent;
(d) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
Debt (eexcluding the Prudential Debt) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increasedincreased in excess of the amount set forth on such Schedule;
(e) the Debt to be Repaid (so long as such Debt is repaid on the Closing Date with the proceeds of the initial Loans hereunder);
(f) Suretyship Contingent Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions dispositions permitted under Section 11.411.5;
(g) up to $2,000,000 the Prudential Debt so long as the principal amount thereof is not increased and each mandatory payment of principal and interest thereunder is timely made in accordance with the aggregate terms of (i) Acquired the Prudential Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute AcquisitionsDocuments;
(h) convertible Debt issued by Parent, so long as (i) the stated maturity of such Debt shall be a date not earlier than six months after the stated maturity date of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 Contingent Liabilities listed on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv))Schedule 11.1;
(i) Suretyship Liabilities with Guaranties by the Company and/or its Subsidiaries in respect to (A) of Debt otherwise of the Company or its domestic Subsidiaries permitted under by this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations;
(j) Suretyship Liabilities that constitute Investments permitted Hedging Obligations incurred in favor of Administrative Agent, any Lender or any of their Affiliates for bona fide hedging purposes and not for speculation;
(k) Debt owing to any trust created under Section 11.10 (unless only permitted by clause (b) a supplemental executive retirement program of Section 11.10)the Company; and
(kl) other Debt, in addition Debt of the Company owing to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,000Canadian Entity.
Appears in 1 contract
Sources: Credit Agreement (Cpi Corp)
Debt. Not, and not permit any other Loan Party to, create, incur, assume or suffer to exist any Debt, except:
(a) Obligations under this Agreement and the other Loan Documents;
(b) Debt incurred or assumed after the Closing Date which is secured by Liens permitted by Section 11.2(d), and extensions, renewals and refinancings thereof; provided, provided that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters$2,000,000;
(ci) unsecured Debt of the Parent or Company owing by any Borrower to any Wholly-Owned Subsidiary other Borrower or Debt of to any Wholly-Owned Subsidiary to the Company, the Parent or another Domestic Wholly-Owned Subsidiary; (ii) Debt owing by any Domestic Wholly-Owned Subsidiary (other than a Borrower) that is a Guarantor to the Borrowers or to any other Domestic Wholly-Owned Subsidiary (other than the Borrowers); provided that in each of the cases of clause (i) the sum of (A) the aggregate principal amount outstanding of any such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in the form of Exhibit H attached hereto and substance pledged and delivered to the Administrative Agent pursuant to the Collateral Documents as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations of the Loan Parties hereunder in a manner reasonably satisfactory to the Administrative Agent which has been pledged Agent; and (iii) unsecured Debt owing by a Loan Party to a First-Tier Foreign Subsidiary, provided such Debt is subordinated to the Administrative Agent prior payment in accordance with the terms full, in cash, of the Guaranty Obligations on terms reasonably acceptable to Administrative Agent; and Pledge Agreement(iv) Debt owing by a Foreign Subsidiary to any other Foreign Subsidiary;
(d) unsecured Subordinated Debt (other than Debt owing by a Loan Party to any other Loan Party or any Affiliate thereof) in an amount at any time outstanding not to exceed $10,000,000;
(e) Hedging Obligations approved by Administrative Agent and incurred in favor of a Lender or an Affiliate thereof (other than any Hedging Agreement existing as of the Closing Date, which can be with any Person) for bona fide hedging purposes and not for speculation;
(ef) Debt existing on the date hereof described on Schedule 11.1 9.26 and any extension, renewal or refinancing thereof so long as neither the principal amount thereof is not increased, the weighted average life to maturity decreased or, if secured, any additional collateral is granted as security therefor;
(fg) Suretyship the Debt to be Repaid (so long as such Debt is repaid on the Closing Date with the proceeds of the initial Loans hereunder);
(h) unsecured Contingent Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Permitted Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions dispositions permitted under Section 11.4;
(gi) up to $2,000,000 in the aggregate 5,000,000 at any time outstanding of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Permitted Acquisitions;
(h) convertible Debt issued by Parent, so long as (i) the stated maturity of such Debt shall be a date not earlier than six months after the stated maturity date of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv));
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations;
(j) Suretyship Liabilities unsecured Debt in respect of bid, performance or surety, appeal or similar bonds issued for the account of and completion guarantees provided by the Loan Parties in the ordinary course of business;
(k) Debt arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn against insufficient funds in the ordinary course of business; provided, however, that constitute Investments permitted under Section 11.10 such Debt is extinguished within five Business Days of incurrence;
(unless only permitted by clause (bl) Debt arising in connection with endorsement of Section 11.10)instruments for deposit in the ordinary course of business; and
(km) other Debt, in addition to Debt of the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,000Company under the Canadian Guaranty.
Appears in 1 contract
Debt. NotBorrower will not, and will not permit any other Loan Credit Party to, directly or indirectly, create, incur, assume assume, guarantee or suffer to exist otherwise become or remain directly or indirectly liable with respect to, any Debt, exceptexcept for:
(a) Obligations Debt incurred under this Agreement and the other Loan Financing Documents;
(b) Debt outstanding on the date of this Agreement and set forth on Schedule 5.1 and any Refinancing Indebtedness in connection therewith;
(c) Intercompany Debt arising from loans made by (i) Borrower to any Guarantor, (ii) any Guarantor to Borrower, (iii) Borrower to its Restricted Subsidiaries that are Wholly-Owned Subsidiaries to fund working capital requirements of such Restricted Subsidiaries in the Ordinary Course of Business, or (iv) any Restricted Subsidiary that is a Wholly-Owned Subsidiary of Borrower to Borrower; provided, however, that upon the request of Administrative Agent at any time, any such Debt shall be evidenced by promissory notes having terms reasonably satisfactory to Administrative Agent and Lead Lenders, and the sole originally executed counterparts of which shall be pledged and delivered to Administrative Agent, for the benefit of Administrative Agent and Lendersthe Secured Parties, as security for the Obligations;
(d) Guarantees by Borrower of Debt of any Restricted Subsidiary permitted hereunder and by any Restricted Subsidiary of Debt of Borrower or any other Restricted Subsidiary permitted hereunder;
(e) Debt of Borrower or any Restricted Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Debt assumed after in connection with the Closing Date which is acquisition of any such assets or secured by Liens permitted by Section 11.2(d)a Lien on any such assets prior to the acquisition thereof, and extensions, renewals and refinancings thereof; provided, that the aggregate amount replacements of all any such Debt at any time that do not increase the outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters;
(c) Debt of the Parent or Company to any Wholly-Owned Subsidiary or Debt of any Wholly-Owned Subsidiary to the Company, the Parent or another Wholly-Owned Subsidiaryprincipal amount thereof; provided that (i) the sum of (A) the aggregate principal amount outstanding of any such Debt owed permitted by a foreign Subsidiary and this clause (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13e) shall not exceed $10,000,000, and (ii) 10,000,000 at any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been pledged to the Administrative Agent in accordance with the terms of the Guaranty and Pledge Agreement;
(d) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
(e) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increasedtime outstanding;
(f) Suretyship Liabilities Debt, if any, arising with respect under Swap Contracts, to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions the extent permitted under Section 11.4 and purchasers in connection with Dispositions permitted under Section 11.45.6;
(g) up to $2,000,000 in Debt constituting Permitted Pari Debt; provided that (A) after giving effect thereto, the aggregate amount of (i) Acquired Permitted Pari Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by incurred at or prior to such Loan Party in transactions which do time does not constitute Acquisitions;
(h) convertible Debt issued by Parent, so long as (i) the stated maturity of such Debt shall be a date not earlier than six months after the stated maturity date of the Loans as of the date of issuanceexceed $25,000,000, (iiB) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurementincurrence of such Permitted Pari Debt, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaultsafter giving effect thereto, will satisfy the requirements of this clause (iv));
(i) Suretyship Liabilities with respect the ratio of PDP PV-10 Value to (A) Secured Total Debt otherwise permitted under this Section 11.1, and (B) Debt as of Persons other such date shall be greater than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 1.0:1.0 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, the Consolidated Secured Total Leverage Ratio shall be less than 4.0:1.0 and such Debt (D) Borrower shall have delivered a certificate executed by a Responsible Officer to the Administrative Agent and the Lead Lenders demonstrating with reasonable detail compliance with the requirements in the preceding clauses (A) through (C) and the definition of other Persons shall count against such limitationsPermitted Pari Debt;
(jh) Suretyship Liabilities Debt of any Person that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) becomes a Subsidiary after the Closing Date; provided that such Debt exists at the time such Person becomes a Subsidiary and is not created in contemplation of Section 11.10); and
(k) other Debt, or in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,000.connection with such Person becoming a Subsidiary;
Appears in 1 contract
Debt. Not, and not permit any other Loan Party to, Not create, incur, assume or suffer to exist any Debt, except:
(ai) Obligations under this Agreement and the other Loan Documents;
(bii) Debt incurred or assumed after the Closing Date which is secured by Liens permitted by Section 11.2(d11.2(iv), and extensions, renewals and refinancings refinancing thereof; provided, provided that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters$2,500,000;
(ciii) Debt of the Parent or Company Borrower to any domestic Wholly-Owned Subsidiary or Debt of any domestic Wholly-Owned Subsidiary to the Company, the Parent Borrower or another domestic Wholly-Owned Subsidiary; provided that (i) the sum of (A) the aggregate principal amount outstanding of any such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been and pledged and delivered to Agent pursuant to the Administrative Agent Collateral Documents as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations of Borrower hereunder in accordance with a manner reasonably satisfactory to Agent. For the terms avoidance of doubt all day to day intercompany transactions which are netted on the Guaranty and Pledge Borrower’s financial statements are not Debt for purposes of this Agreement;
(div) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof or other Hedging Obligations involving any commodity swap agreement, Forward Contract, future contract, foreign currency hedging obligations or similar instrument designed to protect against fluctuations in commodity prices entered into by any Loan Party in the normal course of its business for bona fide hedging purposes and not for speculation;
(ev) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased;
(fvi) Suretyship the Debt to be Repaid (so long as such Debt is repaid on the Closing Date with the proceeds of the initial Loans hereunder);
(vii) Contingent Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions dispositions permitted under Section 11.411.5;
(gviii) up to $2,000,000 Debt incurred in the aggregate ordinary course of (i) Acquired Debt assumed in Acquisitions permitted business under Section 11.4 surety and (ii) Debt secured by property acquired by a Loan Party appeal bonds, performance bonds, bid bonds, appeal bonds, and assumed by such Loan Party in transactions which do not constitute Acquisitionssimilar obligations;
(hix) convertible endorsements of instruments or other payment items for deposit;
(x) unsecured Debt issued of Goldline in the form of loans made by Parent, so long as Borrower to Goldline in an aggregate principal amount outstanding at any time not to exceed $2,000,000;
(ixi) Permitted Secured Metals Lease Obligations in an aggregate principal amount outstanding at any time not to exceed $200,000,000; provided that an aggregate principal amount outstanding of Permitted Secured Metals Lease Obligations in excess of $200,000,000 shall not be a violation of this Section 11.1(xi) if cured within one business day after receiving notice by the stated maturity Agent of such Debt shall be a date excess;
(xii) Unsecured Metals Lease Obligations in an aggregate principal amount outstanding at any time not earlier than six months after to exceed $65,000,000; provided that the stated maturity date of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds aggregate principal amount outstanding at any time of such convertible Debt, with evidence that the Company is Unsecured Metals Lease Obligations may exceed such limit by not more than 10% for a period of up to five (5) consecutive Business Days on not more than five (5) separate occasions in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and any Fiscal Year (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv)which shall not be consecutive);
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (Bxiii) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only AM & ST Associates and Borrower in an aggregate principal amount not to exceed $3,000,000 incurred for the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt purpose of other Persons shall count against such limitationsacquiring equipment;
(jxiv) Suretyship Liabilities that constitute Investments permitted Debt of a special purpose securitization vehicle reasonably acceptable to Agent incurred pursuant to the Trust Securitization in an aggregate principal amount outstanding at any time which, together with all Debt outstanding under Section 11.10 (unless only permitted by clause (bxv) below, shall not exceed $100,000,000;
(xv) Debt of Section 11.10)a special purpose securitization vehicle reasonably acceptable to Agent under a Warehouse Facility in an aggregate principal amount outstanding at any time which, together with all Debt outstanding under clause (xiv) above, shall not exceed $100,000,000;
(xvi) Debt which may arise under the SCMI Ownership Based Financing in respect of the applicable repurchase obligations;
(xvii) Debt of Excluded Subsidiaries which is non-recourse to the Loan Parties in an aggregate amount not in excess of $500,000 at any time outstanding;
(xviii) Debt of Borrower owed to ▇▇▇▇▇▇▇ Leasing Corporation in an aggregate principal amount not to exceed $10,000,000 incurred for the purpose of leasing equipment used at the A-M Global Logistics Las Vegas, Nevada facility;
(xix) Debt of Borrower pursuant to the PayPal Guaranty; and
(kxx) other unsecured Debt, in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,0001,000,000.
Appears in 1 contract
Debt. Not, and not permit any other Loan Party to, create, incur, assume or suffer to exist any Debt, except:
(a) Obligations under this Agreement and the other Loan Documents;
(b) Debt incurred of any Guarantor owing to the Company or assumed after the Closing Date which is secured by Liens permitted by Section 11.2(d), and extensions, renewals and refinancings thereof; provided, that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters;
(c) Debt of the Parent or Company to any Wholly-Owned Subsidiary or Debt of any Wholly-Owned Subsidiary to the Company, the Parent or another Wholly-Owned Subsidiaryother Guarantor; provided that (i) to the sum of (A) the aggregate principal amount outstanding of any extent such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by any note or instrument, such instrument shall be a demand note in form and substance reasonably satisfactory to the Collateral Agent and pledged and delivered to the Collateral Agent pursuant to the Collateral Documents as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations of the Company hereunder in a manner reasonably satisfactory to the Administrative Agent which has been pledged Agent;
(c) Subordinated Debt, provided that (A) immediately before and after (on a pro forma basis acceptable to the Administrative Agent and supported by such certificates required by the Administrative Agent) the incurrence of any such Subordinated Debt, no Unmatured Event of Default or Event of Default shall exist and the Company shall be in accordance pro forma compliance with the terms all financial and other covenants contained herein as of the Guaranty date of incurrence of such Subordinated Debt and Pledge Agreement(B) all agreements, documents and instruments relating to such Subordinated Debt shall have been delivered to and approved by the Administrative Agent and the Required Lenders prior to the incurrence of such Subordinated Debt;
(d) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculationObligations;
(e) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increasedincreased (and as such amount is reduced from time to time) and no modifications of the terms thereof which are less favorable to the Company or more restrictive on the Company in any material manner shall be permitted;
(f) Suretyship Contingent Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Permitted Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions dispositions permitted under Section 11.4;
(g) up Earnouts with respect to $2,000,000 in Permitted Acquisitions made by the aggregate of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute AcquisitionsCompany;
(h) convertible Debt issued Trade accounts payable and accrued expenses arising in the ordinary course which are current or past due only in an amount which is not material in the aggregate for the Company and its Subsidiaries on a consolidated basis, or which are being contested in good faith by Parent, so long as (i) appropriate proceedings and for which adequate reserves are maintained on the stated maturity of such Debt shall be a date not earlier than six months after the stated maturity date books of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv))Company;
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only which is non-recourse to the extent (i) within Company or its Subsidiaries, provided that the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, aggregate amount of such non-recourse Indebtedness does not exceed $10,000,000 and such Debt non-recourse terms and the other terms of other Persons shall count against such limitationsfinancing are acceptable to the Administrative Agent;
(j) Suretyship Liabilities Debt incurred to finance insurance premiums in the ordinary course of business consistent with past practices of the Company;
(k) Debt of Subsidiaries and Joint Ventures which are not Guarantors owing to the Company or a Guarantor not exceeding an aggregate amount equal to the book value of five percent (5%) of Total Assets; provided, that constitute Investments permitted under Section 11.10 (unless only any such Debt shall reduce, dollar for dollar, the available transactions permitted by Section 11.6(g);
(l) Debt represented by the subtraction of Adjusted Off-Balance Sheet Liabilities from Off-Balance Sheet Liabilities;
(m) Debt (other than Debt to the Principals) other than as described in clauses (a) through (l) above and (o) below not exceeding an aggregate amount equal to the book value of five percent (5%) of Total Assets, provided that not more than 50% of the Debt incurred or otherwise outstanding pursuant to this clause (bm) of may be secured by Permitted Liens;
(n) Debt which may otherwise be permitted pursuant to Section 11.10)11.6; and
(ko) other Debt, in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,000arising from Ordinary Course Capital Leases.
Appears in 1 contract
Debt. NotThe Company will not, and will not permit any other Loan Party of its Subsidiaries to, directly or indirectly, create, incur, assume assume, guarantee or suffer to exist otherwise become or remain directly or indirectly liable with respect to, any Debt, exceptexcept for:
(a) Obligations under Debt of the Company outstanding on the date of this Agreement as set forth in Schedule 6.01 and the other Loan Documentsany Permitted Refinancing thereof;
(b) Debt incurred or assumed after the Closing Date which is secured by Liens permitted by Section 11.2(d), and extensions, renewals and refinancings thereof; provided, that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal QuartersThe Existing Additional Acquisition Liabilities;
(c) Debt of the Parent or Company to any Wholly-Owned Subsidiary or Debt of any Wholly-Owned Subsidiary to under the Company, the Parent or another Wholly-Owned Subsidiary; provided that (i) the sum of (A) the aggregate principal amount outstanding of any such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been pledged to the Administrative Agent in accordance with the terms of the Guaranty and Pledge AgreementFinancing Documents;
(d) Hedging Obligations Debt of the Company or any of its Subsidiaries incurred or assumed for the purpose of financing all or any part of the cost of acquiring any fixed asset (including through Capital Leases), in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and aggregate principal amount at any time outstanding not for speculationgreater than $500,000;
(e) Debt described on Schedule 11.1 and of the Company or any extensionof its Subsidiaries to a wholly-owned Subsidiary of the Company, renewal or refinancing thereof so long as of any Subsidiary of the principal amount thereof is not increasedCompany to the Company;
(f) Suretyship Liabilities arising with respect to customary indemnification obligations in favor Purchase money Debt of sellers and assumptions of obligations (other than Acquired Debt) the Company incurred in connection with Acquisitions permitted under an acquisition in accordance with terms and conditions of Section 11.4 6.07, which Debt shall be subordinated in all respects to any and purchasers all Debt of the Company to the Agent and the Lenders, upon terms and conditions satisfactory to the Lenders and the incurrence of which Debt does not result in connection with Dispositions permitted under Section 11.4;a Default or an Event of Default.
(g) up to $2,000,000 Debt constituting liabilities under letters of credit, surety bonds or similar instruments issued in the ordinary course of business to secure bids, purchase orders, statutory obligations such as workers compensation insurance or sales tax bonds, operating leases and similar obligations (but not Debt), provided that the aggregate outstanding obligation (whether fixed or contingent, drawn or undrawn) of (i) Acquired Debt assumed in Acquisitions permitted the Company and its Subsidiaries under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by all such Loan Party in transactions which do instruments shall not constitute Acquisitions;at any time exceed $50,000; and
(h) convertible Other Debt issued by Parent, so long as (i) the stated maturity of such Debt shall be a date not earlier than six months after the stated maturity date of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred Company and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv));
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) of Section 11.10); and
(k) other Debt, in addition to the Debt listed above, its Subsidiaries in an aggregate outstanding principal amount (whether fixed or contingent, drawn or undrawn) not to exceed at any time exceeding $2,000,00050,000.
Appears in 1 contract
Debt. Not, and not permit any other Loan Party to, createCreate, incur, assume assume, permit, guarantee, or suffer otherwise become or remain, directly or indirectly, liable with respect to exist any Debt, except:
(a) the Obligations under evidenced by this Agreement and the other Loan Documents;
(b) Debt incurred or assumed after the Closing Date which is secured by Liens permitted by Section 11.2(d), and extensions, renewals and refinancings thereof; provided, that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters[intentionally omitted];
(c) Debt Contingent Obligations resulting from the endorsement of instruments for collection in the Parent or Company to any Wholly-Owned Subsidiary or Debt ordinary course of any Wholly-Owned Subsidiary to the Company, the Parent or another Wholly-Owned Subsidiary; provided that (i) the sum of (A) the aggregate principal amount outstanding of any such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been pledged to the Administrative Agent in accordance with the terms of the Guaranty and Pledge Agreementbusiness;
(d) Hedging Obligations incurred in favor Debt of (i) any Subsidiary to the Borrower or to any Guarantor, (ii) the Borrower or any Guarantor to any other the Borrower or any Guarantor, or (iii) any Subsidiary that is not a Lender or an Affiliate thereof for bona fide hedging purposes and Loan Party to any other Subsidiary that is not for speculationa Loan Party;
(e) Debt described on Schedule 11.1 and which may be deemed to exist pursuant to any extensionperformance bonds, renewal surety bonds, statutory bonds, appeal bonds or refinancing thereof so long as similar obligations incurred in the principal amount thereof is not increasedordinary course of business;
(f) Suretyship Liabilities arising with Debt in respect to customary indemnification obligations in favor of sellers netting services, overdraft protections and assumptions of obligations (other than Acquired Debt) otherwise in connection with Acquisitions permitted under Section 11.4 and purchasers deposit accounts incurred in connection with Dispositions permitted under Section 11.4the ordinary course of business;
(g) up to $2,000,000 guaranties in the aggregate ordinary course of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 business of the obligations of suppliers, customers, franchisees and (ii) Debt secured by property acquired by a licensees of Loan Party Parties and assumed by such Loan Party in transactions which do not constitute Acquisitionstheir Subsidiaries;
(h) convertible Debt issued by Parent, of a Loan Party or any of its Subsidiaries under any Hedging Agreement so long as (i) the stated maturity of such Debt shall be a date not earlier than six months after the stated maturity date of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt Hedging Agreements are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default used solely as a result part of judgments its normal business operations as a risk management strategy or hedge against changes resulting from market operations and defaults under other indebtedness no lower than those provided not as a means to speculate for investment purposes on trends and shifts in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv))financial or commodities markets;
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted incurred in the ordinary course of business under this Section 11.1incentive, and (B) Debt of Persons non-compete, consulting, deferred compensation, or other than Loan Parties that would be permitted under this Section 11.1 if such Person were a similar arrangements incurred by any Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations;
(j) Suretyship Liabilities Debt incurred in the ordinary course of business with respect to the financing of insurance premiums;
(k) Debt in respect of taxes, assessments or governmental charges to the extent that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) of Section 11.10)payment thereof shall not at the time be required to be made hereunder; and
(kl) [intentionally omitted];
(m) guaranties by Loan Parties or other Subsidiaries in respect of real estate lease obligations incurred in the ordinary course of business;
(n) Debt existing, or pursuant to commitments existing, on the Restatement Effective Date and set forth on Schedule 6.1;
(o) Purchase Money Debt; and
(p) Permitted Risk Retention Debt; provided that in no event shall the Borrower or any of its Subsidiaries be liable for any Debt of any Fifth Street Fund (which shall not include obligations to contribute cash, in addition Assets or Investments to any Fifth Street Fund to the Debt listed aboveextent not prohibited by Section 6.3, 6.5 or 6.6 or obligations in an aggregate outstanding amount not at any time exceeding $2,000,000respect of letters of credit to the extent such obligations are otherwise permitted to be incurred under this Section 6.1).
Appears in 1 contract
Sources: Credit Agreement (Fifth Street Asset Management Inc.)
Debt. Not, and not permit any other Loan Party to, create, incur, assume or suffer to exist any Debt, except:
(a) Obligations under this Agreement and the other Loan Documents;
(b) Debt incurred or assumed after the Closing Date which is Debt, including Acquired Debt, consisting of Capitalized Leases and/or secured by Liens permitted by Section 11.2(d), and extensions, renewals and refinancings thereof; provided, provided that the aggregate amount of all such Debt and Capitalized Rentals at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters$10,000,000;
(c) Debt of the Parent or Company to any domestic Wholly-Owned Subsidiary or Debt of any domestic Wholly-Owned Subsidiary to the Company, the Parent Company or another domestic Wholly-Owned Subsidiary; provided that (i) that, upon the sum request of (A) the aggregate principal amount outstanding of any Administrative Agent, such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been and pledged and delivered to the Administrative Agent in accordance with pursuant to the terms Collateral Documents as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations of the Guaranty and Pledge AgreementCompany hereunder in a manner reasonably satisfactory to the Administrative Agent;
(d) Hedging Obligations approved by Administrative Agent and incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
(e) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increasedincreased in excess of the amount set forth on such Schedule;
(f) Suretyship the Debt to be Repaid (so long as such Debt is repaid on the Closing Date with the proceeds of the initial Loans hereunder);
(g) Contingent Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions dispositions permitted under Section 11.4;
(g) up to $2,000,000 in the aggregate of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitions;
(h) convertible Debt issued by Parent, so long as (i) the stated maturity of such Debt shall be a date not earlier than six months after the stated maturity date of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Subordinated Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv));; and
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1Other unsecured Debt, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) of Section 11.10); and
(k) other including Acquired Debt, in addition to that referred to elsewhere in this Section 11.1 incurred by a Loan Party; provided that the Debt listed above, in an aggregate outstanding amount of all Debt incurred by the Loan Parties pursuant to this clause (i) shall not at any time exceeding exceed $2,000,0001,000,000 in the aggregate.
Appears in 1 contract
Debt. NotEach Loan Party and the Parent shall not, and not permit any other Loan Party of its Subsidiaries to, create, incur, assume or suffer or permit to exist any Debt, except:
(a) Obligations under this Agreement and the other Loan Documents;
(b) Debt incurred of the Company or assumed after the Closing Date which is any of its Subsidiaries secured by Liens permitted by Section 11.2(d11.2(e), and extensions, renewals and refinancings thereof; provided, provided that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters$175,000;
(c) Debt of the Parent or Company to any domestic Wholly-Owned Subsidiary or Debt of any domestic Wholly-Owned Subsidiary to the Company, the Parent Company or another domestic Wholly-Owned Subsidiary; provided that (i) the sum of (A) the aggregate principal amount outstanding of any such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been and pledged and delivered to the Administrative Agent in accordance with pursuant to the terms Collateral Documents as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations of the Guaranty and Pledge AgreementCompany hereunder in a manner satisfactory to the Administrative Agent;
(d) Hedging Obligations incurred Contingent Liabilities arising with respect to customary indemnification obligations in favor of a Lender purchasers in connection with dispositions permitted under Section 11.4;
(e) Contingent Liabilities of the Company and/or its Subsidiaries in respect of Debt of the Company or an Affiliate thereof its domestic Wholly-Owned Subsidiaries permitted by this Section 11.1;
(f) Hedging Obligations approved in writing by the Administrative Agent for bona fide hedging purposes and not for speculation;
(eg) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased;
(f) Suretyship Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions permitted under Section 11.4;
(g) up to $2,000,000 in the aggregate of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitions;
(h) convertible the Debt issued by Parent, to be Repaid (so long as (i) the stated maturity of such Debt shall be a date not earlier than six months after is repaid on the stated maturity date Closing Date with the proceeds of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv)hereunder);
(i) Suretyship Liabilities the Debt to be assumed in connection with respect to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations;Convertible Note Offering; and
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) of Section 11.10); and
(k) other Approved Subordinated Debt, in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,000.
Appears in 1 contract
Debt. NotBorrower will not, and will not permit any other Loan Credit Party to, directly or indirectly, create, incur, assume assume, guarantee or suffer to exist otherwise become or remain directly or indirectly liable with respect to, any Debt, exceptexcept for:
(a) Obligations Debt incurred under this Agreement and the other Loan Financing Documents;
(b) Debt outstanding on the date of this Agreement and set forth on Schedule 5.1 and any Refinancing Indebtedness in connection therewith;
(c) Intercompany Debt arising from loans made by (i) Borrower to any Guarantor, (ii) any Guarantor to Borrower, (iii) Borrower to its Restricted Subsidiaries that are Wholly-Owned Subsidiaries to fund working capital requirements of such Restricted Subsidiaries in the Ordinary Course of Business, or (iv) any Restricted Subsidiary that is a Wholly-Owned Subsidiary of Borrower to Borrower; provided, however, that upon the request of Administrative Agent at any time, any such Debt shall be evidenced by promissory notes having terms reasonably satisfactory to Administrative Agent, and the sole originally executed counterparts of which shall be pledged and delivered to Administrative Agent, for the benefit of Administrative Agent and Lenders, as security for the Obligations;
(d) Guarantees by Borrower of Debt of any Restricted Subsidiary permitted hereunder and by any Restricted Subsidiary of Debt of Borrower or any other Restricted Subsidiary permitted hereunder;
(e) Debt of Borrower or any Restricted Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Debt assumed after in connection with the Closing Date which is acquisition of any such assets or secured by Liens permitted by Section 11.2(d)a Lien on any such assets prior to the acquisition thereof, and extensions, renewals and refinancings thereof; provided, that the aggregate amount replacements of all any such Debt at any time that do not increase the outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters;
(c) Debt of the Parent or Company to any Wholly-Owned Subsidiary or Debt of any Wholly-Owned Subsidiary to the Company, the Parent or another Wholly-Owned Subsidiaryprincipal amount thereof; provided that (i) the sum of (A) the aggregate principal amount outstanding of any such Debt owed permitted by a foreign Subsidiary and this clause (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13e) shall not exceed $10,000,000, and (ii) 10,000,000 at any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been pledged to the Administrative Agent in accordance with the terms of the Guaranty and Pledge Agreement;
(d) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
(e) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increasedtime outstanding;
(f) Suretyship Liabilities Debt, if any, arising with respect under Swap Contracts, to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions the extent permitted under Section 11.4 and purchasers in connection with Dispositions permitted under Section 11.45.6;
(g) up to $2,000,000 in Debt constituting Permitted Pari Debt; provided that (A) after giving effect thereto, the aggregate amount of (i) Acquired Permitted Pari Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by incurred at or prior to such Loan Party in transactions which do time does not constitute Acquisitions;
(h) convertible Debt issued by Parent, so long as (i) the stated maturity of such Debt shall be a date not earlier than six months after the stated maturity date of the Loans as of the date of issuanceexceed $25,000,000, (iiB) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurementincurrence of such Permitted Pari Debt, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaultsafter giving effect thereto, will satisfy the requirements of this clause (iv));
(i) Suretyship Liabilities with respect the ratio of PDP PV-10 Value to (A) Secured Total Debt otherwise permitted under this Section 11.1, and (B) Debt as of Persons other such date shall be greater than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 1.0:1.0 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, the Consolidated Secured Total Leverage Ratio shall be less than 4.0:1.0 and such Debt (D) Borrower shall have delivered a certificate executed by a Responsible Officer to the Administrative Agent and the Lead Lenders demonstrating with reasonable detail compliance with the requirements in the preceding clauses (A) through (C) and the definition of other Persons shall count against such limitationsPermitted Pari Debt;
(jh) Suretyship Liabilities Debt of any Person that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) becomes a Subsidiary after the Closing Date; provided that such Debt exists at the time such Person becomes a Subsidiary and is not created in contemplation of Section 11.10); and
(k) other Debt, or in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,000.connection with such Person becoming a Subsidiary;
Appears in 1 contract
Debt. NotBorrower will not, and will not permit any other Loan Party of its Subsidiaries to, directly or indirectly, create, incur, assume assume, or suffer to exist otherwise become or remain directly or indirectly liable with respect to, any Debt, except:
(a) Obligations under Debt incurred pursuant to this Agreement and the other Loan DocumentsAgreement;
(b) Debt incurred or assumed after the Closing Date which is secured by Liens permitted by Section 11.2(d), and extensions, renewals and refinancings thereof; provided, that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal QuartersMaterial Subsidiary Guaranty;
(c) Debt in respect of the Parent or Company Capital Lease Obligations;
(d) Contingent Obligations permitted by Section 7.5;
(e) Borrower and its Subsidiaries may remain liable with respect to any Wholly-Owned Subsidiary or Debt of any Wholly-Owned Subsidiary to Borrower and its Subsidiaries existing on the Company, Closing Date (all of which Debt that consists of letters of credit and surety and performance bonds outstanding on the Parent or another Wholly-Owned SubsidiaryClosing Date and all other of such Debt that is in excess of $1,000,000 in outstanding principal amount is described in Schedule 7.1) and refinancing thereof; provided that such refinanced Debt shall be on terms no less favorable to Borrower (iother than in respect to market interest rate changes) and its Subsidiaries than the sum Debt being replaced and after giving effect thereto would not result in a Default or Event of Default;
(Af) Borrower and its Subsidiaries may become and remain liable with respect to intercompany Debt; provided that all of the aggregate principal amount outstanding intercompany Debt of any such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary Borrower to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary Borrower shall be evidenced by a demand note in form and substance reasonably satisfactory subordinated to the Administrative Agent which has been pledged to the Administrative Agent Obligations in accordance with the terms of the Guaranty and Pledge Agreement;
(d) Hedging Obligations incurred set forth in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
(e) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased;
(f) Suretyship Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions permitted under Section 11.4Exhibit I;
(g) up to $2,000,000 Debt of any Person which becomes a Subsidiary of Borrower or is merged into Borrower or any Subsidiary of Borrower in the aggregate of (i) Acquired Debt assumed in Acquisitions an amount permitted under Section 11.4 7.4(c); and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitions;
(h) convertible Debt issued by Parent, so long as (i) the stated maturity of provided such Debt shall be a date not earlier than six months after existed at the stated maturity date of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv));
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if time such Person were became a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one Subsidiary of Borrower or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) of Section 11.10); and
(k) other Debt, in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,000.was so
Appears in 1 contract
Sources: Credit Agreement (Flowserve Corp)
Debt. NotThe Borrower will not, and will not permit any other Loan Party Subsidiary to, incur, create, incur, assume or suffer to exist any Debt, except:
(a) the Obligations.
(b) accounts payable and accrued expenses, liabilities or other obligations to pay the deferred purchase price of Property or services, from time to time incurred in the ordinary course of business which are not greater than sixty (60) days past the date of invoice or delinquent or which are being contested in good faith by appropriate action and for which adequate reserves have been maintained in accordance with GAAP.
(c) Debt under Capital Leases not to exceed $2,000,000.
(d) Debt associated with bonds or surety obligations required by Governmental Requirements in connection with the operation of the Oil and Gas Properties.
(e) intercompany Debt between the Borrower and any Subsidiary or between Subsidiaries to the extent permitted by Section 9.05(g); provided that such Debt is not held, assigned, transferred, negotiated or pledged to any Person other than the Borrower or one of its Wholly-Owned Subsidiaries, and, provided further, that any such Debt owed by either the Borrower or a Guarantor shall be subordinated to the Obligations on terms satisfactory to the Administrative Agent.
(f) endorsements of negotiable instruments for collection in the ordinary course of business.
(g) other Debt, including purchase-money obligations, not to exceed $2,000,000 in the aggregate at any one time outstanding.
(h) Debt arising under Swap Agreements permitted under Section 9.18 hereof.
(i) so long there exists no Default before and after giving effect to any such incurrence, Senior Notes so long as in each case, (i) the maturity date of such Senior Notes is not less than one year after the Maturity Date, (ii) the indentures or other agreements under which any Senior Notes are issued and all other instruments, agreements and other documents evidencing or governing such Senior Notes or providing for any guarantee or other right in respect thereof have terms that are not more restrictive on the Parent, the Borrower or any of the Subsidiaries than the terms of this Agreement and the other Loan Documents;
(b) Debt incurred or assumed after the Closing Date which is secured by Liens permitted by Section 11.2(d), and extensions, renewals and refinancings thereof; provided, that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters;
(c) Debt of the Parent or Company to any Wholly-Owned Subsidiary or Debt of any Wholly-Owned Subsidiary to the Company, the Parent or another Wholly-Owned Subsidiary; provided that (i) the sum of (A) the aggregate principal amount outstanding of any such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been pledged to the Administrative Agent in accordance with the terms of the Guaranty and Pledge Agreement;
(d) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
(e) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased;
(f) Suretyship Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions permitted under Section 11.4;
(g) up to $2,000,000 in the aggregate of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitions;
(h) convertible Debt issued by Parent, so long as (iiii) the stated maturity of such Debt shall be a date not earlier than six months after the stated maturity date of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt Senior Notes are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv));
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations;unsecured.
(j) Suretyship Liabilities that constitute Investments permitted Debt arising under Section 11.10 (unless only permitted by clause (b) of Section 11.10); and
(k) other Debt, the First Lien Credit Agreement which may not exceed $1,500,000,000 in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,000principal amount.
Appears in 1 contract
Sources: Term Loan Agreement (Vanguard Natural Resources, LLC)
Debt. Not, and not permit any other Loan Party to, createCreate, incur, assume assume, or suffer to exist any recourse or nonrecourse Debt, except:
(a) Obligations Debt of Borrower under this Agreement and the other Loan DocumentsAgreement;
(b) Debt incurred or assumed after the Closing Date which is secured by Liens permitted by Section 11.2(d)(if any) described in Schedule 4.4, and but no renewals, extensions, renewals and or refinancings thereof; provided, that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters;
(c) Debt of the Parent Accounts payable to trade creditors for goods or Company to any Wholly-Owned Subsidiary or Debt of any Wholly-Owned Subsidiary to the Companyservices and current operating liabilities (other than for borrowed money), the Parent or another Wholly-Owned Subsidiary; provided that (i) the sum of (A) the aggregate principal amount outstanding of any such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments incurred in the proceeds ordinary course of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing business and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000paid within the required time, unless contested by Borrower in good faith and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been pledged to the Administrative Agent in accordance with the terms of the Guaranty and Pledge Agreementappropriate proceedings;
(d) Hedging Obligations incurred in favor Indebtedness of any Subsidiary of Borrower acquired pursuant to a Permitted Acquisition (or Indebtedness assumed by Borrower or any Subsidiary of Borrower pursuant to a Permitted Acquisition as a result of a Lender merger or consolidation or the acquisition of an Affiliate thereof for bona fide hedging purposes and not for speculation;
asset securing such Indebtedness) (e) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased;
(f) Suretyship Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than “Permitted Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions permitted under Section 11.4;
(g) up to $2,000,000 in the aggregate of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitions;
(h) convertible Debt issued by Parent”), so long as (i) the stated maturity of such Debt shall be a date Indebtedness was not earlier than six months after the stated maturity date of the Loans as of the date of issuanceincurred in connection with, or in anticipation or contemplation of, such Permitted Acquisition, (ii) no mandatory redemption requirements prior such Indebtedness does not constitute debt for borrowed money (except to maturity other than upon a Change the extent such Indebtedness cannot be repaid in accordance with its terms at the time of Control or its assumption pursuant to other customary event risk featuressuch Permitted Acquisition, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided capitalized lease obligations shall not constitute debt for in this Agreement borrowed money for such categories of defaults, will satisfy the requirements purposes of this clause (iv))ii) and (iii) at the time of such Permitted Acquisition, such Indebtedness does not exceed 25% of the total value of the assets of the Subsidiary so acquired, or of the assets so acquired, as the case may be;
(ie) Suretyship Liabilities with respect to (A) Debt otherwise Interest rate protection agreements required or permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) of Section 11.10)Agreement; and
(kf) other DebtUnsecured Debt in an amount not to exceed an aggregate dollar amount of $500,000 during the initial term of the Revolving Loan, in addition such Debt to be on terms and conditions satisfactory to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,000Agent.
Appears in 1 contract
Sources: Loan Agreement (Qep Co Inc)
Debt. NotThe Transferor will not, and will not permit any other Loan Party Seller to, incur, create, incurassume, assume or suffer permit to exist any Debt, except:
(a) Obligations under this Agreement and the other Loan Documents;
(b) Debt incurred or assumed after the Closing Date which is secured by Liens permitted by Section 11.2(d), and extensions, renewals and refinancings thereof; provided, that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters;
(c) Debt of the Parent or Company to any Wholly-Owned Subsidiary or Debt of any Wholly-Owned Subsidiary to the Company, the Parent or another Wholly-Owned Subsidiary; provided that (i) the sum of (A) the aggregate principal amount outstanding of any such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been pledged to the Administrative Agent in accordance with the terms of the Guaranty and Pledge Agreement;
(d) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
(e) Debt described on Schedule 11.1 SCHEDULE 3.6(a), and any extensionextensions, renewal renewals, or refinancing thereof so long as the principal amount thereof is not increased;
(f) Suretyship Liabilities arising with respect to customary indemnification obligations in favor refinancings of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions permitted under Section 11.4;
(g) up to $2,000,000 in the aggregate of (i) Acquired such existing Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitions;
(h) convertible Debt issued by Parent, so long as (i) the stated maturity principal amount of such Debt after such renewal, extension, or refinancing shall be a date not earlier than six months after exceed the stated maturity date principal amount of the Loans as of the date of issuancesuch Debt which was outstanding immediately prior to such renewal, extension, or refinancing and (ii) no mandatory redemption requirements such Debt shall not be secured by any assets other than assets securing such Debt, if any, prior to maturity such renewal, extension, or refinancing;
(ii) Debt of a Subsidiary of the Transferor, other than upon a Change any such Debt incurred in the ordinary course of Control business, owed to the Transferor or pursuant another Subsidiary of the Transferor provided that such Debt is on terms satisfactory to other customary event risk features, the Deal Agent in its sole discretion;
(iii) no Unmatured Event Guaranties and other Debt incurred in the ordinary course of Default or Event of Default shall have occurred business with respect to Receivables purchase commitments, reinsurance obligations, surety and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios appeal bonds and restrictions set forth in Section 11.12 on the date of measurement, performance and return-of-money bonds;
(iv) Debt of the restrictive covenants and events Transferor or any Subsidiary of default relating the Transferor constituting purchase money Debt (including, without limitation, Capital Lease Obligations) incurred after the Closing Date not to such Debt are generally no more restrictive than those set forth exceed $500,000 in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to aggregate at any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv))time outstanding secured by purchase money Liens constituting Permitted Liens;
(i) Suretyship Liabilities with respect to (Av) Debt otherwise permitted under this Section 11.1, and constituting obligations to reimburse worker's compensation insurance companies for claims paid by such companies on the Transferor's or any of its Subsidiaries' behalf in accordance with the policies issued to the Transferor or such Subsidiary of the Transferor;
(Bvi) Debt secured by the Permitted Liens;
(vii) Debt arising under, created by and consisting of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan PartyHedging Agreements, but only to the extent PROVIDED, (i) within such Hedging Agreements shall have been entered into for the limitations set forth in this Section 11.1 purpose of hedging actual risk and not for speculative purposes and (ii) that each counterparty to such Hedging Agreement shall be First Union or shall be rated in one of the two highest rating categories of S&P or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations▇▇▇▇▇'▇;
(jviii) Suretyship Liabilities Intercompany obligations among Transferor, FIFSG and their respective Subsidiaries for reasonable net rent allocation, reasonable management fees, dividends declared, equity investments and intercompany debt service, including, but not limited to, that constitute Investments permitted certain unsecured loan by FIVH to the Transferor pursuant to which the Transferor may borrow, repay and reborrow an amount not to exceed $25,000,000, as evidenced by that certain promissory note, dated April 23, 1997, issued by the Transferor and payable to the order of FIVH, as such note may be amended, modified, extended or increased from time to time;
(ix) Debt arising under Section 11.10 (unless only permitted by clause (b) of Section 11.10)a Securitization; and
(kx) other DebtDebt arising in conjunction with certain interest rate hedging obligations between the Transferor and Bank of America, N.A. arising under that certain ISDA Master Agreement dated October 21, 1996 and further described in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,000SCHEDULE 3.1(v).
Appears in 1 contract
Sources: Sale and Servicing Agreement (First Investors Financial Services Group Inc)
Debt. NotThe Company shall not, and not nor shall it permit any other Loan Party Subsidiary to, create, assume, incur, assume or suffer to exist exist, or in any manner become liable, directly, indirectly, or contingently in respect of, any Debt other than the following (collectively, the “Permitted Debt, except:”):
(a) Obligations Debt of the Credit Parties under this Agreement and the other Loan Credit Documents;
(b) intercompany Debt incurred or assumed after in the Closing Date which is secured ordinary course of business owed by Liens permitted by Section 11.2(d)a Credit Party to another Credit Party; provided that, and extensionsif applicable, renewals and refinancings thereof; provided, that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quartersan investment is also permitted in Section 6.3;
(c) Debt in the form of accounts payable to trade creditors for goods or services and current operating liabilities (other than for borrowed money) which in each case are not more than 90 days past due, in each case incurred in the Parent or Company to any Wholly-Owned Subsidiary or ordinary course of business, as presently conducted, unless contested in good faith and by appropriate proceedings;
(d) Debt of any Wholly-Owned Subsidiary to for borrowed money incurred after the Company, the Parent or another Wholly-Owned SubsidiaryEffective Date; provided that (i) the sum of (A) the aggregate principal amount outstanding of any such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company is either unsecured or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000Additional Subordinated Debt, and (ii) any the maintenance covenants and financial ratios under instruments or agreements governing the credit facility for such Debt owed are not more restrictive than such covenants under the Facilities as reasonably determined by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the US Administrative Agent which has been pledged to the Administrative Agent in accordance with the terms of the Guaranty and Pledge Agreement;
determination will not be unreasonably withheld or delayed, (d) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
(e) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased;
(f) Suretyship Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions permitted under Section 11.4;
(g) up to $2,000,000 in the aggregate of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitions;
(h) convertible Debt issued by Parent, so long as (iiii) the stated scheduled maturity of such Debt shall be a date not earlier than is at least six months after past the stated scheduled Maturity Date and no amortization payments, mandatory prepayments, or repurchases of such Debt are required thereunder other than at the scheduled maturity date thereof (other than amortization payments, mandatory prepayments or repurchases required in respect of such Debt in connection with the occurrence of an event of default under such Debt, a change of control of the Loans as issuer (including a disposition of all or substantially all of the date assets of issuancethe US Borrower and its Subsidiaries, (ii) no mandatory redemption requirements prior to maturity other than upon a liquidation or dissolution of the US Borrower, or any event constituting a Change of Control (as defined herein) or pursuant to other customary event risk features, (iii) no Unmatured Event of Default an asset sale by the issuer or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurementa Subsidiary thereof), and (iv) the restrictive Company and its Subsidiaries are in compliance with the covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv));
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 Agreement, both before and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and after giving effect to each incurrence of such Debt of other Persons shall count against such limitationsDebt;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) of Section 11.10); and
(k) other Debt, in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,000.
Appears in 1 contract
Sources: Credit Agreement (Complete Production Services, Inc.)
Debt. Not, and not permit any other Loan Party to, create, incur, assume or suffer to exist any Debt, except:
(a) Obligations under this Agreement and the other Loan Documents;
(b) Debt incurred or assumed after the Closing Date which is secured by Liens permitted by Section 11.2(d), and extensions, renewals and refinancings thereof; provided, provided that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of $2,500,000, provided, however, the previous four Fiscal Quartersforgoing limit shall not include a Sale Leaseback if such Sale Leaseback is consummated in an arm’s-length manner on market terms and conditions;
(c) Debt of the Parent or Company to any domestic Wholly-Owned Subsidiary or Debt of any domestic Wholly-Owned Subsidiary to the Company, the Parent Company or another domestic Wholly-Owned Subsidiary; provided that (i) that, upon the sum reasonable request of (A) the aggregate principal amount outstanding of any Administrative Agent, such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been and pledged and delivered to the Administrative Agent in accordance with pursuant to the terms Collateral Documents as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations of the Guaranty and Pledge AgreementCompany hereunder in a manner reasonably satisfactory to the Administrative Agent;
(d) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
(e) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increasedincreased in excess of the amount set forth on such Schedule;
(e) the Debt to be Repaid (so long as such Debt is repaid on the Closing Date with the proceeds of the initial Loans hereunder);
(f) Suretyship Contingent Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions dispositions permitted under Section 11.4;11.5; 1240807.08
(g) up to $2,000,000 in the aggregate of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute AcquisitionsContingent Liabilities listed on Schedule 11.1;
(h) convertible Guaranties by the Company and/or its Subsidiaries in respect of Debt issued by Parent, so long as (i) the stated maturity of such Debt shall be a date not earlier than six months after the stated maturity date of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control Company or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in its domestic Subsidiaries permitted by this Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv))11.1;
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1Hedging Obligations incurred in favor of Administrative Agent, any Lender or any of their Affiliates for bona fide hedging purposes and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitationsnot for speculation;
(j) Suretyship Liabilities that constitute Investments permitted Debt owing to any trust created under Section 11.10 (unless only permitted by clause (b) a supplemental executive retirement program of Section 11.10)the Company; and
(k) other Debt, in addition Debt of the Company owing to the Debt listed above, Canadian Entities up to $5,000,000 in an aggregate outstanding amount not at any time exceeding $2,000,000the aggregate.
Appears in 1 contract
Sources: Credit Agreement (Cpi Corp)
Debt. Not, and not permit any other Loan Note Party or Subsidiary to, create, incur, assume or suffer to exist any Debt, except:
(a) Obligations under this Agreement and the other Loan Investment Documents, and Debt evidenced by the Shareholder Notes;
(b) Debt incurred or assumed after the Closing Date which is secured by Liens permitted by Section 11.2(d7.2(d), and extensions, renewals and refinancings thereof; provided, provided that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters$600,000;
(c) Debt of the Parent or Company Companies to any Wholly-Owned Domestic Subsidiary or Debt of any Wholly-Owned Domestic Subsidiary to the Company, the Parent Companies or another Wholly-Owned SubsidiaryDomestic Subsidiary of the Companies; provided that (i) the sum of (A) the aggregate principal amount outstanding of any that, if requested by Agent, such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been and pledged and delivered to Agent pursuant to the Administrative Agent Guarantee and Collateral Agreement as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations hereunder in accordance with the terms of the Guaranty and Pledge Agreementa manner reasonably satisfactory to Agent;
(d) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes (and not for speculation);
(e) Debt described on Schedule 11.1 7.1 as of the Closing Date, and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased;
(f) Suretyship Liabilities [Reserved];
(g) Contingent Obligations arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions dispositions permitted under Section 11.4;
(g) up to $2,000,000 in the aggregate of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitions7.5;
(h) convertible (i) (A) Permitted Seller Debt and (B) Debt of a Subsidiary of a Company acquired pursuant to a Permitted Acquisition (or Debt of a Target assumed at the time of a Permitted Acquisition of such Target) so long as such Debt was not incurred in contemplation of such Permitted Acquisition; provided, that the aggregate outstanding amount of all Debt permitted by this Section 7.1(h)(i) shall not exceed $750,000 at any time, and (ii) Permitted Earn-Outs in an aggregate amount outstanding not to exceed $750,000 at any time (for purposes of this Section 7.1(h), the amount outstanding determined as the maximum amount potentially payable in respect of such Permitted Earn-Out in accordance with the terms thereof);
(i) Contingent Obligations arising under guarantees by a Note Party of Debt or other obligations of any other Note Party (other than Holdings), which Debt or other obligations are otherwise permitted hereunder; provided that if such obligation is subordinated to the Obligations, such guarantee shall be subordinated to the same extent;
(j) Debt consisting of unpaid insurance premiums (not in excess of one (1) year’s premiums) owing to insurance companies and insurance brokers incurred in connection with the financing of insurance premiums in the ordinary course of business;
(k) unsecured guarantees (i) made in the ordinary course of business with respect to appeal bonds; (ii) made in the ordinary course of business with respect to surety bonds, customs bonds, performance bonds, bid bonds, completion guarantees and similar obligations, in each case to the extent such bonds, guarantees or other obligations are permitted under clause (l) below, or (iii) arising as a result of customary indemnification obligations to purchasers that are not Affiliates of a Note Party in connection with any disposition permitted by Section 7.5 hereof;
(l) indebtedness incurred in the ordinary course of business under (i) appeal bonds and (ii) surety bonds, customs bonds, performance bonds, bid bonds, completion guarantees and similar obligations in an aggregate amount, with respect to this clause (ii), not to exceed $600,000 at any time outstanding;
(m) unsecured Debt of Holdings owing to former employees, officers, or directors (or any spouses, former spouses, or estates of any of the foregoing) of Holdings, the Companies and their Subsidiaries to finance the repurchase by Holdings of equity interests of Holdings that have been issued by Parentto such Persons upon the death or separation from employment thereof, so long as (i) no Event of Default has occurred and is continuing at the stated maturity time of issuance or would result from the incurrence of such Debt shall be a date not earlier than six months after the stated maturity date of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv));
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and the aggregate amount of all such Debt of other Persons shall count against such limitationsoutstanding at any one time does not exceed $600,000;
(jn) Suretyship Liabilities that constitute Investments unsecured indebtedness representing deferred compensation or similar obligations to employees, officers and directors incurred in the ordinary course of business;
(o) [Reserved];
(p) [Reserved];
(q) Debt in connection with permitted under Section 11.10 (unless only intercompany advances, loans and contributions permitted by clause Section 7.11(q) below;
(br) Contingent payment obligations and contingent liabilities in respect of customary indemnification obligations and customary post-closing adjustments or “true-ups” of purchase price in connection with any Permitted Acquisition;
(s) accrued unpaid management fees, in an aggregate amount not to exceed $600,000 per Fiscal Year, to the extent not permitted to be paid pursuant to Section 11.107.4(h); and
(kt) other unsecured Debt, in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,0001,000,000.
Appears in 1 contract
Sources: Note Purchase Agreement (CNL Strategic Capital, LLC)
Debt. NotCreate, and not incur, assume or suffer to exist, or permit any other Loan Party to, of its Restricted Subsidiaries to create, incur, assume or suffer to exist exist, any Debt, except:
(ai) Obligations Debt under this Agreement the Loan Documents and the other Loan DocumentsExisting Debt;
(bii) intercompany Debt incurred or assumed after of the Closing Date which is secured by Liens permitted by Section 11.2(d)Borrower owed to a Restricted Subsidiary; provided that, (x) in the case of such Debt owed to a Foreign Subsidiary, such Debt shall be subordinated to the Obligations of the Borrower under the Loan Documents on terms reasonably satisfactory to the Administrative Agent and extensions, renewals and refinancings thereof; provided, that (y) in the aggregate amount case of all such Debt, the outstanding amount of such Debt shall at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of all times be documented by the previous four Fiscal QuartersBorrower in accordance with Section 5.1(q);
(ciii) Debt in the case of the Parent or Company to any Domestic Subsidiary that is a Wholly-Owned Restricted Subsidiary, intercompany Debt owed to the Borrower or to another Domestic Subsidiary or Debt of any that is a Wholly-Owned Subsidiary to the CompanyRestricted Subsidiary; provided that, in each case, the Parent or another outstanding amount of such Debt shall at all times be documented by the Borrower in accordance with Section 5.1(q);
(iv) in the case of any Foreign Subsidiary that is a Wholly-Owned Restricted Subsidiary, intercompany Debt owed to the Borrower or to another Foreign Subsidiary that is a Wholly-Owned Restricted Subsidiary; provided that (i) that, in the sum case of such intercompany Debt owed to the Borrower, such Debt (A) the aggregate principal amount outstanding of any such shall constitute Pledged Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note promissory notes in form and substance reasonably satisfactory to the Administrative Agent (the outstanding amount of which has been pledged to shall at all times be documented by the Administrative Agent Borrower in accordance with the terms of the Guaranty and Pledge Agreement;
(d) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
(e) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased;
(f) Suretyship Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions permitted under Section 11.4;
(g) up to $2,000,000 in the aggregate of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitions;
(h) convertible Debt issued by Parent, so long as (i) the stated maturity of such Debt shall be a date not earlier than six months after the stated maturity date of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv5.1(q));
(iv) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (B) additional Subordinated Debt of Persons other than Loan Parties the Borrower; provided that would (x) upon issuance of such Subordinated Debt the Borrower shall be permitted under this in compliance (on a Pro Forma Basis) with the financial covenants set forth in Section 11.1 if such Person were a Loan Party5.4, but only (y) 50% of the Net Cash Proceeds of the issuance thereof shall be applied to the Term B Advances to the extent required by Section 2.6(b)(ii) and (z) such Debt shall meet the requirements of Section 5.2(b)(vi) as if such Debt were refinancing existing Subordinated Debt;
(vi) any Debt extending the maturity of, or refunding or refinancing, in whole or in part, any Debt (other than intercompany Debt) permitted under clauses (i) within the limitations set forth in or (v) of this Section 11.1 and 5.2(b) or this clause (ii) vi); provided that one the terms of any such extending, refunding or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefromrefinancing Debt, and of any agreement entered into and of any instrument issued in connection therewith, are otherwise permitted by the Loan Documents; provided further that the principal amount of such Debt of other Persons shall count against such limitations;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) of Section 11.10); and
(k) other Debt, in addition not be increased above the principal amount thereof outstanding immediately prior to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,000.such
Appears in 1 contract
Debt. NotHoldings will not incur, create, assume or permit to ---- exist any Debt except the Holdings Senior Notes. The Borrower will not, and will not permit any other Loan Party Subsidiary of the Borrower to, incur, create, incur, assume or suffer permit to exist any Debt, except:
(a) Obligations under this Agreement and Debt to the other Lenders pursuant to the Loan Documents;
(b) intercompany Debt incurred between or assumed after among the Closing Date which is secured Borrower and any of its Wholly- Owned Subsidiaries and intercompany Debt owed to Holdings by Liens permitted by Section 11.2(d)any of its Wholly- Owned Subsidiaries, subject to the following requirements: any and extensions, renewals and refinancings thereof; provided, that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters;
(c) Debt of the Parent or Company to any Wholly-Owned Subsidiary or Debt of any Wholly-Owned Subsidiary to the Company, the Parent or another Wholly-Owned Subsidiary; provided that (i) the sum of (A) the aggregate principal amount outstanding of any such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition permitted pursuant to this Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.139.1(b) shall not exceed $10,000,000be unsecured, and (ii) any such Debt owed by a foreign Subsidiary shall be -------------- evidenced by a demand note in form and substance reasonably instruments satisfactory to the Administrative Agent which has been will be pledged to the Administrative Agent for the benefit of the Administrative Agent and the Lenders and shall be subordinated to the Obligations pursuant to a subordination agreement in form and substance satisfactory to the Administrative Agent, provided, however, that temporary advances made from time to time in the ordinary course of business not to exceed $500,000 in aggregate principal amount at any time owing by any Wholly-Owned Subsidiary of the Borrower to the Borrower shall not be required to be so evidenced, pledged or subordinated;
(c) unsecured Debt under the Interest Rate Protection Agreements required to be maintained by Section 8.12, provided, however, that Debt thereunder may be ------------ secured if such Debt constitutes a part of the Obligations;
(i) existing Debt in the principal amounts and as otherwise described on Schedule 7.10 hereto and renewals, extensions or refinancings of such Debt ------------- which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt on the Effective Date, (ii) purchase money Debt (including Capital Lease Obligations) secured by purchase money Liens and renewals, extensions or refinancings of such Debt which do not increase the outstanding principal amount of such Debt, which do not shorten the maturity of any principal of such Debt and the terms and provisions of which are not materially more onerous than the terms and conditions of such Debt being renewed, extended or refinanced, all of which Debt and Liens are permitted under and meet all of the requirements of clause (g) and (with respect to renewals, extensions or refinancings) clause (n) of the definition of Permitted Liens contained in Section 1.1, (iii) additional ----------- unsecured Debt, and (iv) Guarantees by the Borrower of loans to employees, officers and directors of the Borrower or its Subsidiaries made for the purpose of financing purchases of Capital Stock of Holdings by such employees, officers or directors (as applicable) not to exceed $250,000 in aggregate principal amount at any time Guaranteed; provided, however, that the aggregate principal amount of the Debt referred to in this Section 9.1(d) shall not exceed -------------- $10,000,000 in aggregate amount at any time outstanding (exclusive of Debt owed to a Vendor consisting of amounts payable by the Borrower in accordance with a Supply Agreement which are not past due by more than 90 days beyond the terms of due dates therefor specified in the Guaranty and Pledge Agreement;
(d) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculationapplicable invoices);
(e) Debt described on Schedule 11.1 liabilities of the Borrower in respect of unfunded vested benefits under any Plan if and any extensionto the extent that the existence of such liabilities will not constitute, renewal cause or refinancing thereof so long as the principal amount thereof is not increasedresult in a Default;
(f) Suretyship Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions Debt consisting of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions permitted under Section 11.4;
(g) up to $2,000,000 for repayment of customer deposits received in the aggregate ordinary course of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitions;
(h) convertible Debt issued by Parent, so long as (i) the stated maturity of such Debt shall be a date not earlier than six months after the stated maturity date business of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred Borrower and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv))its Subsidiaries;
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) of Section 11.10); and
(k) other Debt, in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,000.
Appears in 1 contract
Sources: Credit Agreement (Ipcs Inc)
Debt. Not, and not permit any other Loan Party Restricted Subsidiary to, create, incur, assume or suffer to exist any Debt, except:
(a) Obligations under this Agreement and the other Loan Documents;
(b) Nonrecourse Debt incurred or assumed after the Closing Date which is secured by Liens permitted by Section 11.2(d7.02(d), and extensions, renewals and refinancings thereof; provided, provided that the aggregate amount of all such Nonrecourse Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters$100,000,000;
(c) Debt of the Parent or Company Borrower to any Wholly-Owned domestic Restricted Subsidiary or Debt of any Wholly-Owned domestic Restricted Subsidiary of which the Borrower owns, directly or indirectly, not less than 80% of the Equity Interests of such Subsidiary to the Company, the Parent Borrower or another Wholly-Owned domestic Restricted Subsidiary; provided that (i) the sum of (A) the aggregate principal amount outstanding of any such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note and the obligations under such demand note shall be subordinated to the Obligations of the Borrower hereunder in form and substance a manner reasonably satisfactory to the Administrative Agent which has been pledged to the Administrative Agent in accordance with the terms of the Guaranty and Pledge AgreementAgent;
(d) Subordinated Debt provided, that immediately before and immediately after the incurrence of such Subordinated Debt, no Event of Default or Default exists;
(e) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
(ef) Debt described on Schedule 11.1 7.01 and any extension, renewal or refinancing thereof so long as the aggregate principal amount thereof is not increased;
(fg) Suretyship Contingent Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions dispositions permitted under Section 11.47.05;
(gh) Except as provided in Section 7.01(i) below, up to $2,000,000 in the aggregate 75,000,000 of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and 7.06 provided that any such Debt of any Subsidiary is without any recourse to the Borrower or any other Subsidiary (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitionsincluding any other Guarantor);
(hi) convertible Acquired Debt issued by Parent, arising under Acquisitions permitted under Section 7.06 where the primary obligor thereof is a Guarantor so long as (i) the stated maturity of such Acquired Debt shall be a date not earlier than six months after the stated maturity date of the Loans as of the date of issuanceis unsecured, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv));
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one such Acquired Debt is without recourse to the Borrower or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of any other Persons shall count against such limitationsSubsidiary (including any other Guarantor);
(j) Suretyship Liabilities Debt of the Borrower or a Subsidiary incurred pursuant to Permitted Receivables Transactions; provided, that constitute Investments the unpaid principal or equivalent amount thereunder shall not exceed an aggregate amount of $100,000,000 at any time outstanding;
(k) secured Debt existing on the Closing Date evidenced by the Wood ▇▇▇▇ Mortgage Documents and the Debt evidenced by the Avborne IRB Documents;
(l) other secured Debt secured by any Lien permitted under Section 11.10 clauses (unless only permitted by clause k), (bl) and (n) of Section 11.10)7.02; and
(km) other unsecured Debt incurred by the Borrower provided, that immediately before and immediately after the incurrence of such Debt, in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,000no Event of Default or Default exists.
Appears in 1 contract
Sources: Credit Agreement (Aar Corp)
Debt. Not, and not permit any other Loan Party to, create, incur, assume or suffer to exist any Debt, except:
(a) Obligations under this Agreement All Debt represented by the Notes and the other Loan Documents;
(b) Debt Guarantees is being incurred or assumed after for proper purposes and in good faith. Based on the financial condition of the Company as of the Closing Date which is secured by Liens permitted by Section 11.2(d), and extensions, renewals and refinancings thereof; provided, that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters;
(c) Debt of the Parent or Company to any Wholly-Owned Subsidiary or Debt of any Wholly-Owned Subsidiary to the Company, the Parent or another Wholly-Owned Subsidiary; provided that (i) the sum of (A) the aggregate principal amount outstanding of any such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been pledged to the Administrative Agent in accordance with the terms of the Guaranty and Pledge Agreement;
(d) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
(e) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased;
(f) Suretyship Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions permitted under Section 11.4;
(g) up to $2,000,000 in the aggregate of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitions;
(h) convertible Debt issued by Parent, so long as (i) the stated maturity of such Debt shall be a date not earlier than six months after the stated maturity date of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that receipt by the Company of the proceeds from the sale of the Securities hereunder, (i) the fair saleable value of the Group Companies’ assets exceeds the amount that will be required to be paid on or in respect of the Group Companies’ existing Debts and other liabilities (including contingent liabilities) as they mature; (ii) the present fair saleable value of the assets of the Group Companies is in pro forma compliance with all greater than the financial ratios amount that will be required to pay the probable liabilities of the Group Companies on their respective Debt as they become absolute and restrictions set forth in Section 11.12 on mature; (iii) the date of measurement, Group Companies are able to realize upon their assets and pay their Debt and other liabilities (including contingent obligations) as they mature; (iv) the restrictive covenants Group Companies’ assets do not constitute unreasonably small capital to carry on their respective businesses as now conducted and events as proposed to be conducted including their respective capital needs taking into account the particular capital requirements of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood business conducted by the Group Companies, and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments projected capital requirements and capital availability thereof; and (Cv) dollar thresholds the current cash flow of each of the Group Companies, together with the proceeds the Company would receive, were it to liquidate all of its assets, after taking into account all anticipated uses of the cash, would be sufficient to pay all amounts on or in respect of its liabilities when such amounts are required to be paid. None of the Group Companies intends to incur Debts beyond its ability to pay such Debts as they mature (taking into account the timing and amounts of cash to be payable on or in respect of its Debt). The Company has no knowledge of any facts or circumstances which lead it to believe that it or any other Group Companies will file for reorganization or liquidation under the bankruptcy or reorganization laws of any jurisdiction within one year from the Closing Date. None of the Group Companies is, or has reason to believe it is likely to be, in default with respect to any events Debt and no waiver of default as is currently in effect. None of the Group Companies has agreed or consented to cause or permit in the future (upon the happening of a result contingency or otherwise) any of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories its property, whether now owned or hereafter acquired, to be subject to a Lien. None of defaultsthe Group Companies is a party to, will satisfy the requirements of this clause (iv));
(i) Suretyship Liabilities with respect or otherwise subject to (A) Debt otherwise permitted under this Section 11.1any provision contained in, and (B) any instrument evidencing Debt of Persons any of the Group Companies, any agreement relating thereto or any other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Partyagreement (including, but only to not limited to, its charter or other organizational document) which limits the extent (i) within amount of, or otherwise imposes restrictions on the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties deriveincurring of, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) of Section 11.10); and
(k) other Debt, in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,000Company.
Appears in 1 contract
Sources: Notes Purchase Agreement (China Security & Surveillance Technology, Inc.)
Debt. Not, and not permit any other Loan Party to, create, incur, assume or suffer to exist any Debt, except:
(a) Obligations under this Agreement and the other Loan Documents;
(b) Debt incurred or assumed after the Closing Date which is secured by Liens permitted by Section 11.2(d), and extensions, renewals and refinancings thereof; provided, provided that such Debt shall not exceed the cost of the applicable property being leased or acquired and that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters$500,000;
(c) Debt of the Parent or Company to any domestic Wholly-Owned Subsidiary or Debt of any domestic Wholly-Owned Subsidiary to the Company, the Parent Company or another domestic Wholly-Owned Subsidiary; provided that (i) the sum of (A) the aggregate principal amount outstanding of any such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by subordinated to the Obligations of the Loan Parties hereunder in a demand note in form and substance manner reasonably satisfactory to Agent and the Administrative Agent which has been pledged to the Administrative Agent in accordance with the terms of the Guaranty and Pledge AgreementRequired Lenders;
(d) Subordinated Debt;
(e) Hedging Obligations incurred in favor of a any Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
(e) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased;
(f) Suretyship Contingent Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 11.5 and purchasers in connection with Dispositions dispositions permitted under Section 11.411.5;
(g) up to $2,000,000 in the aggregate of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitions;
(h) convertible Debt issued by Parent, so long as (i) the stated maturity of such Debt shall be a date not earlier than six months after the stated maturity date of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv));
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) of Section 11.10); and
(k) other unsecured Debt, in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,000250,000;
(h) Accounts payable and trade debt arising in the ordinary course of the Loan Parties’ business; and
(i) Any non-recourse obligation of a Loan Party arising from a discounting transaction in the ordinary course of business.
Appears in 1 contract
Sources: Credit Agreement (Winmark Corp)
Debt. Not, and not permit any other Loan Party (other than Holdings) to, create, incur, assume or suffer to exist any Debt, except:
(a) Obligations under this Agreement and the other Loan Documents;
(b) Debt incurred or assumed after the Closing Date which is secured by Liens permitted by Section 11.2(d), and extensions, renewals and refinancings thereof; provided, that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters;
(c) The Intercompany Notes, provided (1) such Debt shall not at any one time exceed $450,000,000 outstanding in the aggregate, (2) such Debt shall be evidenced by one or more demand promissory notes in the form of Exhibit J and pledged and delivered to Administrative Agent pursuant to the Collateral Documents, (3) such Debt accrues interest at a rate not to exceed the rates per annum as set forth on Exhibit J attached hereto, and (4) such Debt is at all times subordinate to the Obligations in a manner and to the extent satisfactory to the Administrative Agent and collaterally assigned to and in the possession of the Parent Administrative Agent (and in the event any such notes are modified, amended, restated, or Company replaced, the Administrative Agent may substitute possession for any such existing notes for new notes (or take such other action as it deems necessary with respect to any Wholly-Owned Subsidiary modification or amendment thereto), and Schedule 1 of the Guarantee and Collateral Agreement shall, at such time, be deemed amended to reflect any such new notes or modifications or amendments thereto);
(d) Debt of described on Schedule 11.1 and any Wholly-Owned Subsidiary to the Companyrefinancings, the Parent refundings, renewals or another Wholly-Owned Subsidiaryextensions thereof; provided that (i) the sum amount of (A) the aggregate principal amount outstanding of any such Debt owed by a foreign Subsidiary and (B) is not increased at the aggregate Investments made after the date hereof by the Company time of such refinancing, refunding, renewal or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, extension and (ii) the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note refinancing, refunding, renewing or extending Debt, and of any agreement entered into and of any instrument issued in form and substance reasonably satisfactory connection therewith, are no less favorable in any material respect to the Administrative Agent which has been pledged to the Administrative Agent in accordance with Loan Parties or Lenders than the terms of any agreement or instrument governing the Guaranty Debt being refinanced, refunded, renewed or extended and Pledge Agreementthe interest rate applicable to any such refinancing, refunding, renewing or extending Debt does not exceed the then applicable market interest rate;
(de) Debt to be Repaid (so long as such Debt is repaid on the Closing Date with the proceeds of the initial Loans hereunder);
(f) Contingent Liabilities listed on Schedule 11.1;
(g) Unsecured Guaranties by the Company and/or its Subsidiaries in respect of Debt of the Company or its domestic Subsidiaries permitted by this Section 11.1;
(h) Debt arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, provided that such Debt is extinguished within five (5) Business Days after its incurrence;
(i) Hedging Obligations incurred in favor of a Lender Administrative Agent, or an Affiliate thereof any of its Affiliates, for bona fide hedging purposes and not for speculation;
(e) Debt described on Schedule 11.1 and any extension, renewal speculation or refinancing thereof so long as the principal amount thereof is not increased;
(f) Suretyship Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions permitted under Section 11.4;
(g) up to $2,000,000 in the aggregate of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitions;
(h) convertible Debt issued by Parent, so long as (i) the stated maturity of such Debt shall be a date not earlier than six months after the stated maturity date of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or required pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements terms of this clause (iv));
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitationsAgreement;
(j) Suretyship Liabilities that constitute Investments Lending License Bonds permitted under Section 11.10 this Agreement;
(unless only permitted by clause (bk) of Section 11.10)the Investment Note Debt, provided that the aggregate principal amount thereof shall not exceed the Investment Note Cap at any time; and
(kl) other the Subordinated Debt, not to exceed $25,000,000 in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,000outstanding, provided that a Subordination Agreement (or other manner of subordination approved by the Administrative Agent) is in effect with respect thereto and not being challenged in any respect by any Person.
Appears in 1 contract
Sources: Loan Modification Agreement (Pioneer Financial Services Inc)
Debt. Not, and not permit any other Loan Party of its Subsidiaries to, create, incur, assume or suffer or permit to exist any Debt, except:
(a) Obligations under this Agreement and the other Loan Documents;
(b) Debt incurred of the Company or assumed after the Closing Date which is any of its Subsidiaries secured by Liens permitted by Section 11.2(d11.2(e), and extensions, renewals and refinancings thereof; provided, provided that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters$500,000;
(c) Debt of the Parent or Company to any domestic Wholly-Owned Subsidiary or Debt of any domestic Wholly-Owned Subsidiary to the Company, the Parent Company or another domestic Wholly-Owned Subsidiary; provided that (i) the sum of (A) the aggregate principal amount outstanding of any such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been and pledged and delivered to the Administrative Agent in accordance with pursuant to the terms Collateral Documents as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations of the Guaranty and Pledge AgreementCompany hereunder in a manner reasonably satisfactory to the Administrative Agent;
(d) Hedging Obligations incurred Contingent Liabilities arising with respect to customary indemnification obligations under contracts entered into in the ordinary course of business or in favor of purchasers in connection with Dispositions permitted under Section 11.4;
(e) Contingent Liabilities of the Company and/or its Subsidiaries in respect of Debt of the Company or its domestic Wholly-Owned Subsidiaries permitted by this Section 11.1;
(f) Debt arising from the honoring by a Lender bank or an Affiliate thereof other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, provided that such Debt is extinguished within five (5) Business Days after its incurrence;
(g) Hedging Obligations approved in writing by the Administrative Agent for bona fide hedging purposes and not for speculation;
(eh) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased;
(f) Suretyship Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions permitted under Section 11.4;
(g) up to $2,000,000 in the aggregate of (i) Acquired he Debt assumed in Acquisitions permitted under Section 11.4 and to be Repaid (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitions;
(h) convertible Debt issued by Parent, so long as (i) the stated maturity of such Debt shall be a date not earlier than six months after is repaid on the stated maturity date Closing Date with the proceeds of the initial Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (ivhereunder));
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) of Section 11.10)Subordinated Debt; and
(k) other Debt, Debt and Contingent Liabilities not to exceed $1,000,000 in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,000outstanding.
Appears in 1 contract
Sources: Credit Agreement (Cellular Dynamics International, Inc.)
Debt. NotThe Company shall not, and not nor shall it permit any other Loan Party Subsidiary to, create, assume, incur, assume or suffer to exist exist, or in any manner become liable, directly, indirectly, or contingently in respect of, any Debt other than the following (collectively, the “Permitted Debt, except:”):
(a) Obligations Debt of the Credit Parties under this Agreement and the other Loan Credit Documents;
(b) intercompany Debt incurred or assumed after in the Closing Date which is secured ordinary course of business owed by Liens permitted by Section 11.2(d)a Credit Party to another Credit Party; provided that, and extensionsif applicable, renewals and refinancings thereof; provided, that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quartersan investment is also permitted in Section 6.3;
(c) Debt of for borrowed money incurred after the Parent or Company to any Wholly-Owned Subsidiary or Debt of any Wholly-Owned Subsidiary to the Company, the Parent or another Wholly-Owned SubsidiaryEffective Date; provided that (i) the sum of such Debt is either unsecured or Permitted Subordinated Debt, (Aii) the aggregate principal amount outstanding of any maintenance covenants and financial ratios under instruments or agreements governing the credit facility for such Debt owed (including, without limitation, indentures) are not more restrictive than such covenants under the Facilities as reasonably determined by a foreign Subsidiary and the US Administrative Agent which determination will not be unreasonably withheld or delayed, (Biii) the aggregate Investments made after scheduled maturity of such Debt is at least six months past the date hereof scheduled Maturity Date and no amortization payments, mandatory prepayments, mandatory redemptions, mandatory conversions or mandatory repurchases of such Debt are required thereunder other than at the scheduled maturity thereof (other than amortization payments, mandatory prepayments, mandatory redemptions, mandatory conversions, or mandatory repurchases required in respect of such Debt in connection with the occurrence of an event of default under such Debt, a change of control of the issuer (including a disposition of all or substantially all of the assets of the US Borrower and its Subsidiaries, a liquidation or dissolution of the US Borrower, or any event constituting a Change of Control (as defined herein) or an asset sale by the Company issuer or any domestic a Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000thereof), and (iiiv) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note the Company and its Subsidiaries are in form and substance reasonably satisfactory to the Administrative Agent which has been pledged to the Administrative Agent in accordance compliance with the terms covenants set forth in this Agreement, both before and after giving effect to each incurrence of the Guaranty and Pledge Agreementsuch Debt;
(d) Hedging Obligations incurred Unsecured Debt existing on the Effective Date and set forth in favor Part A of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculationSchedule 6.1 (including the Bond Issuance);
(e) Debt described on Schedule 11.1 and any extensionthe following secured Debt; provided that, renewal or refinancing thereof so long as the aggregate principal amount thereof is of all such Debt shall not increased;
(f) Suretyship Liabilities arising with respect to customary indemnification obligations exceed 10% of the Company’s consolidated Net Worth at any time and neither Borrower nor any Subsidiary may enter into additional indebtedness of the type described in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions permitted under Section 11.4;
this clause (g) up if a Default is continuing or entering into the additional indebtedness could reasonably be expected to $2,000,000 in the aggregate of cause a Default:
(i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and purchase money indebtedness or Capital Leases;
(ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitions;
(h) convertible Debt issued by Parent, so long as (i) the stated maturity of such Debt shall be a date not earlier than six months after the stated maturity date Liens of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth type described in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv));
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) of Section 11.106.2(f); and
(kiii) other Debt, Secured Debt existing on the Effective Date and set forth in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,000Part B of Schedule 6.1.
Appears in 1 contract
Sources: Credit Agreement (Complete Production Services, Inc.)
Debt. NotBorrower will not, and will not permit any other Loan Party Subsidiary to, directly or indirectly, create, incur, assume assume, guarantee or suffer to exist otherwise become or remain directly or indirectly liable with respect to, any Debt, exceptexcept for:
(a) Obligations Debt under this Agreement the Financing Documents and the other Loan DocumentsLetter of Credit Liabilities;
(b) Debt incurred or assumed after outstanding on the Closing Date which is secured by Liens permitted by Section 11.2(d)and set forth on Schedule 5.1 and any refinancings, and extensionsrefundings, renewals and refinancings thereof; provided, or extensions thereof to the extent that the aggregate amount of all such Debt is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to fees and expenses reasonably incurred in connection with such refinancing and by an amount equal to any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quartersexisting unutilized commitments thereunder;
(c) Subordinated Debt;
(d) Debt incurred or assumed for the purpose of financing all or any part of the Parent cost of acquiring any fixed asset (including through Capital Leases), in an aggregate principal amount at any time outstanding not greater than $3,000,000;
(e) Debt, if any, arising under Swap Contracts;
(f) Intercompany Debt arising from loans made by (i) Borrower to its Wholly-Owned Domestic Subsidiaries to fund working capital requirements of such Subsidiaries in the Ordinary Course of Business, or Company to (ii) any Wholly-Owned Subsidiary or Debt of Borrower to Borrower; provided, however, that upon the request of Administrative Agent at any Wholly-Owned Subsidiary to the Companytime, the Parent or another Wholly-Owned Subsidiary; provided that (i) the sum of (A) the aggregate principal amount outstanding of any such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance promissory notes having terms reasonably satisfactory to Administrative Agent, the sole originally executed counterparts of which shall be pledged and delivered to Administrative Agent, for the benefit of Administrative Agent which has been pledged to and Lenders, as security for the Administrative Agent in accordance with the terms of the Guaranty and Pledge Agreement;
(d) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
(e) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased;
(f) Suretyship Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions permitted under Section 11.4;Obligations; and
(g) up Unsecured Debt not to exceed $2,000,000 3,000,000 in the aggregate of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitions;
(h) convertible Debt issued by Parent, so long as (i) the stated maturity of such Debt shall be a date not earlier than six months after the stated maturity date of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv));
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) of Section 11.10); and
(k) other Debt, in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,000outstanding.
Appears in 1 contract
Sources: Credit Agreement (Palace Entertainment Holdings, Inc.)
Debt. Not, and not permit any other Loan Party to, createCreate, incur, assume or suffer to exist any Debt, except:
(a) Obligations under this Agreement and the other Loan Documents;
(b) Debt incurred or assumed after the Closing Date which is secured by Liens permitted by Section 11.2(dSections 7.02(d), 7.02(h) and 7.02(j), and extensions, renewals and refinancings thereof; provided, provided that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters$25,000,000;
(c) Debt of the Parent or Company a Co-Borrower to any domestic Wholly-Owned Subsidiary or Debt of any Wholly-Owned Subsidiary to the Company, the Parent a Co-Borrower or another to a domestic Wholly-Owned Subsidiary; provided that (i) the sum of (A) the aggregate principal amount outstanding of any such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been and pledged and delivered to the Administrative Agent in accordance with pursuant to the terms Collateral Documents as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations of the Guaranty and Pledge AgreementCo-Borrowers hereunder in a manner reasonably satisfactory to the Administrative Agent;
(d) Subordinated Debt;
(e) Hedging Obligations approved by Administrative Agent and incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
(ef) Debt described on Schedule 11.1 7.01 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased;
(fg) Suretyship Liabilities arising with Debt in respect of secured obligations pursuant to customary indemnification obligations one or more Factoring Facilities, not to exceed $30,000,000 in favor of sellers and assumptions of obligations the aggregate amount at any one time outstanding;
(other than Acquired Debth) Debt assumed in connection with Acquisitions permitted under Section 11.4 and purchasers 7.05 not to exceed $15,000,000 at any time outstanding;
(i) Debt consisting of seller financing incurred in connection with Dispositions permitted under Section 11.4;
(g) up to $2,000,000 in the aggregate of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do 7.05 not constitute Acquisitionsto exceed $15,000,000 at any time outstanding;
(hj) convertible Debt issued incurred by Parenta Co-Borrower or any Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price, earn-outs or similar obligations, or from guaranties or letters of credit, surety bonds or performance bonds securing the performance of such Co-Borrower or any such Subsidiary pursuant to such agreements;
(k) guaranties by any Co-Borrower or any Subsidiary of Debt of any other Co-Borrower or any Subsidiary with respect to, in each case, Debt otherwise permitted to be incurred pursuant to this Section 7.01; and
(l) so long as (i) the stated maturity of such Debt shall be a date not earlier than six months after the stated maturity date of the Loans as of the date of issuance, (ii) there exists no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred before and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use incurrence of proceeds of any such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv));
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) of Section 11.10); and
(k) other unsecured Debt, in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,00025,000,000.
(g) Section 7.03 of the Credit Agreement is hereby amended to read as follows:
Appears in 1 contract
Sources: Credit Agreement (Ennis, Inc.)
Debt. Not, and not permit any other Loan Party or any Subsidiary of any Loan Party to, create, incur, assume or suffer to exist any Debt, except:
(a) Obligations under this Agreement and the other Loan Documents;
(b) Debt incurred or assumed after of any of the Closing Date which is Loan Parties (other than Holdings and Intermediate Holdings) and their Subsidiaries secured by Liens permitted by Section 11.2(d), and extensions, renewals and refinancings thereof; provided, provided that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters$750,000;
(ci) Debt of the Parent or Company Borrower to any Wholly-Owned Subsidiary or other Borrower, (ii) Debt of any Wholly-Owned Subsidiary Loan Party to Borrower or (iii) Debt of Borrower to any Loan Party, (iv) Debt of Holdings or Intermediate Holdings to Borrower to the Company, the Parent or another Wholly-Owned Subsidiaryextent such Debt could otherwise be made as a restricted payment permitted by Section 11.4 and (v) Debt of any Subsidiary that is not a Guarantor to any Loan Party and Debt of any Loan Party to any Subsidiary that is not a Guarantor in an aggregate amount outstanding not to exceed $1,000,000 less that amount of Investments made pursuant to Section 11.11(c); provided that (i) the sum of (A) the aggregate principal amount outstanding of any if such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a note, it shall be a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been and pledged and delivered to Administrative Agent pursuant to the Administrative Agent in accordance with Collateral Documents as additional collateral security for the terms Obligations, and the obligations under such demand note shall be subordinated to the obligations of the Guaranty and Pledge Loan Parties under the Loan Documents (including the Obligations of Borrower under this Agreement) in a manner reasonably satisfactory to Administrative Agent;
(d) Debt in respect of surety or appeal bonds, workers’ compensation claims, self-insurance obligations and bankers acceptances issued for the account of any Loan Party in the ordinary course of business, including guarantees or obligations of any Loan Party with respect to letters of credit supporting such surety or appeal bonds, workers’ compensation claims, self-insurance obligations and bankers acceptances (in each case other than for an obligation for money borrowed);
(e) Debt arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business;
(f) Debt arising in connection with endorsement of instruments for deposit in the ordinary course of business;
(g) Contingent Liabilities to financial institutions, in each case to the extent in the ordinary course of business and on terms and conditions which are within the general parameters customary in the banking industry, entered into to obtain cash management services or deposit account overdraft protection services (in amount similar to those offered for comparable services in the financial industry) or other services in connection with the management or opening of deposit accounts or incurred as a result of endorsement of negotiable instruments for deposit or collection purposes and other customary, Contingent Liabilities of the Loan Parties incurred in the ordinary course of business;
(h) Debt consisting of accrued and unpaid management fees, operator costs or expenses under the Management Agreement;
(i) Debt consisting of any final judgment rendered against any Loan Party that has not been paid, discharged or vacated or had execution thereof stayed pending appeal prior to such final judgment constituting an Event of Default in accordance with Section 13.1.8;
(j) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculationspeculation in form and substance reasonably satisfactory to Administrative Agent;
(ek) Debt described on Schedule 11.1 11.1(a) and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased;
(fl) Suretyship the Debt to be Repaid (so long as such Debt is repaid on the Closing Date with the proceeds of the initial Loans hereunder);
(m) Contingent Liabilities arising with respect to (i) customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions dispositions permitted under Section 11.4;
(g) up to $2,000,000 in the aggregate of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 11.5, and (ii) Debt secured by property acquired the guaranty by a Loan Party and assumed of a lease, sublease, license or sublicense entered into in the ordinary course of business by such another Loan Party in transactions which do not constitute AcquisitionsParty;
(hn) convertible Debt issued incurred solely to finance Borrower’s insurance premiums under insurance policies maintained by Parent, so long as (i) the stated maturity of such Debt shall be a date not earlier than six months after the stated maturity date of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth Borrower in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making ordinary course of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults business for insurance required under other indebtedness no lower than those provided for in this Agreement for in an aggregate amount at any time outstanding not to exceed the premiums owed under such categories of defaults, will satisfy the requirements of this clause (iv))policy;
(i) Suretyship Liabilities with respect to (Ao) Debt arising out of judgments, attachments or awards not resulting in an Event of Default;
(p) Accretion of interest paid in kind on Debt permitted hereunder;
(q) any guarantee by Holdings or Intermediate Holdings of Debt or other obligations of the Borrower otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitationsAgreement;
(jr) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted unsecured Debt of Holdings or its Subsidiaries subordinated to the Obligations on terms and conditions reasonably satisfactory to the Administrative Agent in its reasonable discretion owing to any former director, officer or employee of Holdings, the Borrower or its Subsidiaries, in connection with the termination of their employment or appointment, or their respective assigns, estates, heirs or their current or former spouses for the repurchase, redemption or other acquisition or retirement for value of any Capital Securities of Holdings held by clause (b) of Section 11.10); andthem;
(ks) other Debt, in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,000.Existing Earn-Out Obligations;
Appears in 1 contract
Debt. Not, and not permit any other Loan Party to, create, incur, assume or suffer to exist any Debt, except:
(a) Obligations under this Agreement and the other Loan Documents;
(b) Debt incurred or assumed after the Closing Date which is secured by Liens permitted by Section 11.2(d), and extensions, renewals and refinancings thereof; provided, provided that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters$5,000,000;
(c) Debt of the Parent or Company to any domestic Wholly-Owned Subsidiary or Debt of any domestic Wholly-Owned Subsidiary to the Company, the Parent Company or another domestic Wholly-Owned Subsidiary; provided that (i) such debt shall be subordinate to the sum Obligations of (A) the aggregate principal amount outstanding of any such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been pledged to the Administrative Agent in accordance with the terms of the Guaranty and Pledge Agreementhereunder;
(d) Subordinated Debt;
(e) Hedging Obligations approved by Administrative Agent and incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
(ef) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased;
(fg) Suretyship the Debt to be Repaid (so long as such Debt is repaid on the Closing Date with the proceeds of the initial Loans hereunder);
(h) Contingent Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) or which need not be recorded as liabilities on a balance sheet in accordance with GAAP in connection with Acquisitions permitted under Section 11.4 11.5 and purchasers in connection with Dispositions dispositions permitted under Section 11.4;
(g) up to $2,000,000 in the aggregate of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitions;
(h) convertible Debt issued by Parent, so long as (i) the stated maturity of such Debt shall be a date not earlier than six months after the stated maturity date of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv));11.5; and
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) of Section 11.10); and
(k) other unsecured subordinated Debt, in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,00010,000,000 (or, in the case of unsecured convertible notes, in an aggregate outstanding amount not at any time exceeding $100,000,000.
Appears in 1 contract
Debt. Not, None of the Obligors or their Subsidiaries (other than Unrestricted Entities) and not permit any other Loan Party tonone of the Partnerships will incur, create, incur, assume or suffer permit to exist any Debt, except:
(a) Obligations under this Agreement and the Notes or other Loan DocumentsIndebtedness or any guaranty of or suretyship arrangement for the Notes or other Indebtedness;
(b) Debt incurred or assumed after of the Closing Date which is secured by Liens permitted by Section 11.2(d)Borrower disclosed in Schedule 9.01, and extensions, any renewals and refinancings or extensions (but not increases) thereof; provided, that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters;
(c) Debt accounts payable (for the deferred purchase price of Property or services) from time to time incurred in the Parent ordinary course of business which, if greater than 90 days past the invoice or Company to any Wholly-Owned Subsidiary or Debt of any Wholly-Owned Subsidiary to the Companybilling date, the Parent or another Wholly-Owned Subsidiary; provided that (i) the sum of (A) the aggregate principal amount outstanding of any such Debt owed are being contested in good faith by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) appropriate proceedings if reserves adequate under GAAP shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has have been pledged to the Administrative Agent in accordance with the terms of the Guaranty and Pledge Agreementestablished therefor;
(d) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculationDebt under leases permitted under Section 9.08;
(e) Debt described on Schedule 11.1 associated with bonds or surety obligations pursuant to Governmental Requirements in connection with the operation of any Obligor’s Oil and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increasedGas Properties;
(f) Suretyship Liabilities arising with respect to customary indemnification obligations in favor Debt of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions the Obligors under Hedging Agreements permitted under Section 11.4 and purchasers in connection with Dispositions permitted under Section 11.49.02;
(g) up Debt to AAI not to exceed $2,000,000 15,000,000 in the aggregate of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 aggregate; provided, that, all such debt shall be unsecured and (ii) Debt secured by property acquired by a Loan Party subordinated to the Obligations on terms and assumed by such Loan Party in transactions which do not constitute Acquisitionsconditions satisfactory to the Administrative Agent;
(h) convertible Debt issued by ParentIntercompany Debt; provided, so long as that, (i) the stated maturity of any such Intercompany Debt shall be a date not earlier than six months after subordinated to the stated maturity date of Obligations upon terms and conditions satisfactory to the Loans as of the date of issuanceAdministrative Agent, and (ii) no mandatory redemption requirements prior such Intercompany Debt in excess of $250,000 shall be evidenced by an Intercompany Note pledged to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred secure the Obligations and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making possession of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv));Administrative Agent; and
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted the Borrower and its Subsidiaries not otherwise described under this Section 11.1 if such Person were a Loan Party, but only subparagraphs (a) through (g) above not to exceed $5,000,000 in the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) of Section 11.10); and
(k) other Debt, in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,000aggregate.
Appears in 1 contract
Sources: Revolving Credit Agreement (Atlas Energy Resources, LLC)
Debt. Not, and not permit Neither the Parent nor any other Loan Party to, create, Company will incur, assume or suffer permit to exist or commit to incur any Debt that has not been approved by the Agent in writing in advance, except the following (collectively, the "Permitted Debt, except:"):
(a) Obligations under this Agreement the Loan and the other Loan DocumentsObligations;
(b) Debt incurred or assumed after the Closing Date which is secured by Liens permitted by Section 11.2(d), and extensions, renewals and refinancings thereof; provided, that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quartersobligations to pay Taxes;
(c) Debt liabilities for account payable, non-capitalized equipment or operating leases and similar liabilities incurred in the ordinary course of the Parent or Company to any Wholly-Owned Subsidiary or Debt of any Wholly-Owned Subsidiary to the Company, the Parent or another Wholly-Owned Subsidiary; provided that (i) the sum of (A) the aggregate principal amount outstanding of any such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been pledged to the Administrative Agent in accordance with the terms of the Guaranty and Pledge Agreementbusiness;
(d) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes accrued expenses, deferred credits and not for speculationloss contingencies that are properly classified as liabilities under GAAP;
(e) Debt described on Schedule 11.1 and incurred in the ordinary course of business to hedge the risk of interest rate fluctuations or any extension, renewal of the Companies' portfolios or refinancing thereof so long as the principal amount thereof is not increasedpipelines of Mortgage Loans under this Agreement or in respect of other Permitted Debt obligations;
(f) Suretyship Liabilities arising with respect liabilities for capital leases and similar liabilities incurred in the ordinary course of business, up to customary indemnification obligations in favor an aggregate maximum principal amount of sellers and assumptions of obligations Five Million Dollars (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions permitted under Section 11.4$5,000,000);
(g) funded Debt in an aggregate principal amount of up to Five Hundred Million Dollars ($2,000,000 500,000,000) under one or more warehouse financing agreements as to each of which:
(1) the Companies have given the Agent advance written notice and a reasonable opportunity to discuss with the Company (taking into account any relevant confidentiality provisions) such warehouse financing agreement, focusing principally on the nature of the collateral and the provisions of such agreement and its related financing statements for perfecting security interests in such collateral (with the aggregate intent of avoiding potential overlapping of such other creditors' and the Agent's Liens; and
(i2) Acquired Debt assumed that permits wet warehousing, the Companies have used their best efforts to cause the lender thereunder to either (x) enter into a written intercreditor arrangement reasonably acceptable to and approved by the Agent if the Agent shall notify the Companies such an arrangement will be required (provided that all intercreditor arrangements made on or before the 12/01 Amendment Effective Date shall remain in Acquisitions permitted under Section 11.4 full force and effect, whether or not the subject warehouse financing agreements permit wet warehousing), or (iiy) Debt secured by property acquired by a Loan Party and assumed by appoint Chase as the documents custodian for such Loan Party in transactions which do not constitute Acquisitionswarehouse financing facility;
(h) convertible Debt issued by Parent, so long as in an aggregate principal amount of up to Twenty Million Dollars (i$20,000,000) the stated maturity of such Debt shall be a date not earlier than six months after the stated maturity date of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control under one or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv))lease financing agreements;
(i) Suretyship Liabilities with respect revolving credit Debt to First Trust Bank of up to Five Million Dollars (A) Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations$5,000,000);
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 the Subordinated Debt described on Schedule SD;
(unless only permitted k) the specific Debt described on Schedule 11.6(k);
(l) other Debt of the Parent or one or more of the Companies approved in writing by clause the Required Lenders (bno Lender shall have any obligation to approve any such Debt, and each may approve or disapprove it in such Lender's sole and absolute discretion);
(m) Debt incurred in connection with the collapsing and repurchasing of Section 11.10)securities issued in connection with a securitization of Mortgage Loans the documentation for which specifically contemplates and permits such a repurchasing transaction; and
(kn) other Debt, Debt secured solely by the residual interests of the Parent or any Company in addition the income stream to the Debt listed above, in an aggregate outstanding amount not at be received under any time exceeding $2,000,000Mortgage Loan or lease securitization program.
Appears in 1 contract
Sources: Senior Secured Credit Agreement (American Business Financial Services Inc /De/)
Debt. Not, and not permit Neither the Company nor any other Loan Party to, Material Subsidiary will create, incur, assume or suffer permit to exist any Debt, except:
(ai) Obligations Debt created under this Agreement and the other Loan Documents;
(bii) Debt incurred existing or assumed after committed on the Closing Date which is secured by Liens permitted by Section 11.2(d), date hereof and listed in Schedule 5.09 hereto or specifically identified as relating to Schedule 5.09 hereto in the Disclosure Materials and extensions, renewals renewals, replacements and refinancings thereof; provided, that the aggregate amount of all any such Debt at any time that do not increase the outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quartersprincipal or committed amount thereof;
(ciii) Debt of the Parent or Company to any Wholly-Owned Subsidiary or and Debt of any Wholly-Owned Material Subsidiary to the Company, the Parent or another Wholly-Owned Subsidiary; provided that (i) the sum of (A) the aggregate principal amount outstanding of any such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been pledged to the Administrative Agent in accordance with the terms of the Guaranty and Pledge Agreementother Subsidiary;
(d) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
(eiv) Debt described on Schedule 11.1 and of the Company or any extension, renewal Subsidiary to NNC or refinancing thereof so long as the principal amount thereof is not increased;
(f) Suretyship Liabilities arising with respect to customary indemnification obligations in favor any Subsidiary of sellers and assumptions of obligations NNC (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 the Company and purchasers in connection with Dispositions permitted under Section 11.4;
(g) up to $2,000,000 in the aggregate of (i) Acquired its Subsidiaries), provided that such Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt is not secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitions;
(h) convertible Debt issued by Parent, so long as (i) the stated maturity of such Debt shall be a date not earlier than six months after the stated maturity date any assets of the Loans as Company or any of the date its Subsidiaries and is subordinate in right of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect payment to the intended use of proceeds of such convertible Debt, with evidence that Notes on terms and conditions no less favorable to the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive Banks than those set forth in Exhibit H hereto;
(v) Guarantees by the Credit Agreement Company of Debt of any Material Subsidiary or of NNC or any Subsidiary of NNC (it being understood other than the Company and agreed its Subsidiaries) and Guarantees by any Material Subsidiary of Debt of the Company or any other Material Subsidiary; provided that Guarantees by the Company of Debt that has of NNC or any Subsidiary of NNC (Aother than the Company and its Subsidiaries) no financial covenants, (B) no restrictive covenants with respect shall be subject to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv)Section 5.12(j);
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (Bvi) Debt of Persons other than Loan Parties the Company or any Material Subsidiary as an account party in respect of trade or performance letters of credit issued to support obligations entered into in the ordinary course of business;
(vii) Debt of the Company or any Material Subsidiary secured by accounts receivable, or rights in respect thereof or incurred pursuant to any receivables securitization (including, if applicable, any net investment amounts); provided that would be permitted the aggregate principal amount thereof outstanding, together with the aggregate amount of outstanding accounts receivable or rights in respect thereof that have been transferred, sold or disposed of, shall not at any time exceed $750,000,000;
(viii) Guarantees in respect of vendor financings and related securitizations entered into in the ordinary course of business;
(ix) obligations under this Section 11.1 if such Person were a Loan Party"take-or-pay" or minimum purchase contracts existing on the Amendment No. 2 Effective Date and disclosed in the Disclosure Materials, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such constituting Guarantees of Debt of the other Persons shall count against such limitationsparties;
(jx) Suretyship Liabilities other unsecured Debt of the Company and NNI in an aggregate principal amount not exceeding $1,000,000,000, less the amount of Guarantees permitted pursuant to clause (viii) above, at any time outstanding;
(xi) other secured Debt of the Company and NNI and Debt of any other Material Subsidiary in an aggregate principal amount which, when added to the aggregate market value of collateral securing obligations under Hedging Agreements pursuant to Section 5.10(vi), does not exceed $500,000,000; provided that constitute Investments permitted under Section 11.10 (unless only the aggregate outstanding principal amount of Debt of Material Subsidiaries permitted by this clause (b) of Section 11.10)shall not exceed $217,000,000 at any time; and
(kxii) other DebtDebt not otherwise permitted hereunder, in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,000issuance of which constitutes a Capital Markets Event.
Appears in 1 contract
Debt. Not, and not permit any other Loan Party to, create, incur, assume or suffer to exist any Debt, except:
(a) Obligations under this Agreement and the other Loan Documents;
(b) Debt incurred or assumed after the Closing Date which is secured by Liens permitted by Section 11.2(d), and extensions, renewals and refinancings thereof; provided, that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters;
(c) Debt of the Parent Companies to each other or Company to any Wholly-Owned Subsidiary Guarantor or Debt of any Wholly-Owned Subsidiary Guarantor to the Company, the Parent Companies or to another Wholly-Owned SubsidiarySubsidiary Guarantor; provided that (i) the sum of (A) the aggregate principal amount outstanding of any such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been and pledged and delivered to the Administrative Agent in accordance with pursuant to the terms Collateral Documents as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations of the Guaranty and Pledge AgreementCompanies hereunder in a manner reasonably satisfactory to the Administrative Agent;
(d) Hedging Obligations incurred in favor of under Hedge Agreements
(i) with a Lender or an Affiliate thereof for bona fide hedging purposes which provide protection against fluctuations in interest rates and (ii) which are approved by the Administrative Agent which provide protection against fluctuations in currency exchange rates or commodity prices and, in each case, are not for speculation;
(ei) Debt of a Person which becomes a Subsidiary after the Closing Date pursuant to an Acquisition permitted under Section 11.11(j) or (ii) Debt of a Person otherwise assumed in connection with an Acquisition or an asset acquired after the Closing Date; provided, that any such Debt was not incurred or created in connection with or in anticipation of the relevant Acquisition;
(f) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased;
(f) Suretyship Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions permitted under Section 11.4;; and
(g) up the Debt to $2,000,000 in the aggregate of be Repaid (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitions;
(h) convertible Debt issued by Parent, so long as (i) the stated maturity of such Debt shall be a date not earlier than six months after is repaid on the stated maturity date Closing Date with the proceeds of the initial Revolving Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (ivhereunder));
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) of Section 11.10); and
(k) other Debt, in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,000.
Appears in 1 contract
Sources: Credit Agreement (Uti Worldwide Inc)
Debt. Not, and not permit any other Loan Party to, create, incur, assume or suffer to exist any Debt, except:
(a) Obligations under this Agreement and the other Loan Documents;
(b) Debt incurred or assumed after the Closing Date which is secured by Liens permitted by Section 11.2(d), and extensions, renewals and refinancings thereof; provided, provided that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters$125,000;
(c) Debt of the Parent or Company Borrower to any domestic Wholly-Owned Subsidiary or Debt of any domestic Wholly-Owned Subsidiary to the Company, the Parent Borrower or another domestic Wholly-Owned Subsidiary; provided that (i) unless waived by the sum of (A) the aggregate principal amount outstanding of any Administrative Agent, such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been and pledged and delivered to Administrative Agent pursuant to the Collateral Documents as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations of Borrower hereunder in a manner reasonably satisfactory to Administrative Agent in accordance with the terms of the Guaranty and Pledge AgreementAgent;
(d) unsecured Hedging Obligations approved by Administrative Agent and incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
(e) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased;
(f) Suretyship the Debt to be Repaid (so long as such Debt is repaid on the Closing Date with the proceeds of the initial Loans hereunder);
(g) Contingent Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions dispositions permitted under Section 11.4;
(g) up to $2,000,000 in the aggregate of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitions11.5;
(h) convertible Debt issued by Parentthe Colon Debt: provided, so long as however, that (i) such Debt shall at all times be subordinated to the stated maturity Obligations on the terms and conditions set forth in the documentation evidencing such Debt, (ii) the aggregate outstanding principal amount of such Debt shall be a date not earlier than six months after the stated maturity date of the Loans as of the date of issuanceat any time exceed $752,500, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, and (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv))shall at all times be unsecured;
(i) Suretyship Liabilities with respect guarantees by a Borrower of the obligations of any other Borrower arising pursuant to (A) Debt a lease or license by such Borrower of real or personal property in the ordinary course of the business of such Borrower, provided that such lease or license is not otherwise permitted prohibited under this Section 11.1, and (B) Debt of Persons other than the Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitationsDocuments;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 Debt in respect of appeal, bid, performance or surety or similar bonds issued for the account of any Borrower in the ordinary course of business (unless only permitted by clause (b) of Section 11.10in each case other than for an obligation for money borrowed); and
(k) other Debt, in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,000100,000;
(k) Debt arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, provided, that, such Debt is extinguished within two (2) Business Days of its incurrence;
(l) other unsecured Debt in an aggregate outstanding amount not at any time exceeding $100,000;
(m) Debt owing by Cyalume France to HSBC France in the maximum aggregate outstanding principal amount not to exceed EUR 200,000 pursuant to an unlimited duration overdraft (découvert à durée indéterminée) renewable each year; provided, however, that none of the other Loan Parties are liable or obligated with respect to such Debt; and
(n) Debt owing by Cyalume France to Banque Palatine (i) in the maximum aggregate outstanding principal amount not to exceed EUR 200,000 pursuant to an unlimited duration overdraft facility (facilité de ▇▇▇▇▇▇ ▇ durée indéterminée) and (ii) in the maximum aggregate principal amount not to exceed EUR 350,000 pursuant to a MCNE facility (mobilisation des créances né▇▇ ▇ur l’étranger) either by way of a facility secured by an assignment by way of guarantee of receivables or by a sale on discount of receivables; provided, however, that none of the other Loan Parties are liable or obligated with respect to such Debt.
Appears in 1 contract
Sources: Credit Agreement (Cyalume Technologies Holdings, Inc.)
Debt. NotThe Parent shall not, and not nor shall it permit any other Loan Party Subsidiary to, create, assume, incur, assume or suffer to exist exist, or in any manner become liable, directly, indirectly, or contingently in respect of, any Debt, exceptother than the following:
(a) Obligations under this Agreement and the other Loan DocumentsObligations;
(b) Debt incurred or assumed after existing on the Closing Date which is secured by Liens permitted by Section 11.2(dand described in Schedule 6.1(b), and extensions, renewals and refinancings thereof; provided, that the aggregate amount Permitted Refinancing Debt in respect of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal QuartersDebt;
(c) unsecured Debt of the Parent, Rowan Delaware and the “Guarantors” under the Non-Extended Facility and Permitted Refinancing Debt in respect thereof; provided that (i) no such Person directly owns or operates any Rig (other than (A) any Rig such Person directly owned or operated on the Closing Date, as disclosed on the certificates delivered pursuant to Section 3.1(m), or (B) so long as the Administrative Agent in its sole discretion provides its prior consent, any Rig temporarily, directly owned or operated by Rowan Delaware) and (ii) no additional obligors may be added under the Non-Extended Facility or such Permitted Refinancing Debt except as required by the terms of the Non-Extended Credit Agreement in effect on the Closing Date;
(d) (i) unsecured Debt of the Parent, Rowan Delaware, or any Approved Affiliate (other than Convertible Debt), (ii) unsecured Contingent Debt of a Subsidiary of the Parent that is not required to be a Guarantor or Company unsecured Contingent Debt of the Parent, in each case supporting Debt described in clause (i) above (but without limiting any Subsidiary’s ability to be obligated in respect of such Debt pursuant to clause (j) below) and (iii) unsecured Disqualified Capital Stock issued by an Approved Affiliate in connection with a Permitted Cash-Box Structure; provided in each case that (A) no obligor in respect of such Debt or Contingent Debt directly owns or operates any Rig (except, with respect to Rowan Delaware, so long as the Administrative Agent provides its prior consent in its sole discretion, a Rig temporarily, directly owned or operated by Rowan Delaware); (B) the Parent shall be in compliance, on a pro forma basis after giving effect to any Wholly-Owned Subsidiary incurrence of such Debt, with each Guarantee Ratio and the other financial covenants contained in this Agreement recomputed as of the last day of the most recently ended fiscal quarter of the Parent for which Financial Statements have been provided (or required to be provided) pursuant to Section 5.2(a) or (b) as if the incurrence of the unsecured Debt in question had occurred on the first day of the relevant period for testing such compliance (as demonstrated, with respect to any Wholly-Owned Subsidiary such Debt incurrence in excess of $25,000,000 and as otherwise requested by the Administrative Agent, in a duly executed Compliance Certificate dated as of the date that such Debt is incurred) and (C) no principal amount in respect of such Debt is mandatorily payable prior to the Companydate that is 120 days after the Maturity Date (other than customary offers to purchase upon a change of control and/or fundamental change and customary acceleration rights after an event of default), provided that the foregoing requirement of this clause (C) shall not apply to the extent such Debt constitutes a customary unsecured bridge facility (1) that automatically converts, upon its maturity, into long-term Debt that meets the requirement of this clause (C), subject only to conversion or exchange conditions that are customary for such automatically converting bridge facilities, and (2) the terms and conditions of which (x) are usual and customary for bridge facilities of such type and (y) are not materially more restrictive or burdensome taken as a whole than the terms and provisions of this Agreement;
(e) unsecured or secured Debt not otherwise permitted under this Section 6.1 of a Person that is acquired or merged with or into or consolidated with the Parent or another Wholly-Owned Subsidiarya Subsidiary existing at the time of such acquisition, merger, or consolidation (and not created in anticipation or contemplation thereof); provided that (i) the sum of Liens securing such Debt are permitted under Section 6.2(l), (Aii) the aggregate principal amount outstanding Parent shall be in compliance, on a pro forma basis after giving effect to any incurrence of such Debt, with each Guarantee Ratio and the other financial covenants contained in this Agreement recomputed as of the last day of the most recently ended fiscal quarter of the Parent for which Financial Statements have been provided (or required to be provided) pursuant to Section 5.2(a) or (b) as if the incurrence of such Debt in question had occurred on the first day of each relevant period for testing such compliance (as demonstrated, with respect to any such Debt owed incurrence in excess of $25,000,000 and as otherwise requested by the Administrative Agent, in a foreign Subsidiary and (B) the aggregate Investments made after duly executed Compliance Certificate dated as of the date hereof by the Company that such Debt is incurred), (iii) no Default or any domestic Subsidiary Event of Default exists, both immediately before and after giving effect to any foreign Subsidiary (excluding in each case Investments the proceeds incurrence of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000such Debt, and (iiiv) any no additional obligors become obligated with respect to such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory other than those that are obligated with respect to such Debt at the Administrative Agent which has been pledged to the Administrative Agent in accordance with the terms of the Guaranty and Pledge Agreement;
(d) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
(e) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof time such Person is not increasedacquired;
(f) Suretyship Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired unsecured Intercompany Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions permitted under Section 11.4;
(g) up secured Intercompany Debt; provided that (i) any holder of such secured Intercompany Debt shall (x) be a Credit Party, (y) not grant or permit to exist any other Lien on such Intercompany Debt owing to it, and (z) not transfer such secured Intercompany Debt or Liens securing such secured Intercompany Debt to any Person who is not a Credit Party; (ii) any Person incurring or guaranteeing such secured Intercompany Debt and any Person granting Liens to secure such secured Intercompany Debt shall be a Credit Party; (iii) the Parent and its Subsidiaries shall be and shall be deemed to have represented that they are in compliance, on a pro forma basis after giving effect to such transactions, with the covenants contained in this Agreement recomputed as of the last day of the most recently ended fiscal quarter of the Parent for which Financial Statements have been delivered or are required to have been delivered pursuant to Section 5.2(a) or (b) as if the incurrence of the secured Intercompany Debt in question had occurred on the first day of each relevant period for testing such compliance, and (iv) all such secured Intercompany Debt shall not exceed $2,000,000 10,000,000 in the aggregate of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitionsoutstanding at any time;
(h) convertible Debt issued by Parent, so long as (i) incurred under any Hedging Arrangement entered into in the stated maturity ordinary course of such Debt shall be a date not earlier than six months after the stated maturity date of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred business and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv))6.14;
(i) Suretyship Liabilities with Debt in respect to (A) Debt otherwise permitted under this Section 11.1of bids, trade contracts, leases, statutory obligations, performance bonds, bid bonds, appeal bonds, surety bonds, custom bonds and (B) Debt similar obligations, in each case incurred in the ordinary course of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitationsbusiness;
(j) Suretyship Liabilities unsecured Convertible Debt of the Parent, Rowan Delaware, or any Approved Affiliate, unsecured Contingent Debt of the Parent supporting such Convertible Debt and Disqualified Capital Stock issued by an Approved Affiliate in connection with a Permitted Cash-Box Structure; provided in each case that constitute Investments permitted under (i) no obligor in respect of such Debt directly owns or operates any Rig (except, with respect to Rowan Delaware, so long as the Administrative Agent provides its prior consent in its sole discretion, a Rig temporarily, directly owned or operated by Rowan Delaware); (ii) the Parent shall be in compliance, on a pro forma basis after giving effect to any incurrence of such Debt, with each Guarantee Ratio and the other financial covenants contained in this Agreement recomputed as of the last day of the most recently ended fiscal quarter of the Parent for which Financial Statements have been provided (or required to be provided) pursuant to Section 11.10 (unless only permitted by clause 5.2(a) or (b) as if the incurrence of Section 11.10such Debt in question had occurred on the first day of the relevant period for testing such compliance (as demonstrated, with respect to any such Debt incurrence in excess of $25,000,000 and as otherwise requested by the Administrative Agent, in a duly executed Compliance Certificate dated as of the date that such Debt is incurred); and (iii) no principal amount in respect of such Debt is mandatorily payable or convertible or exchangeable prior to the date that is 120 days after the Maturity Date (other than (x) customary offers to purchase upon a change of control and/or fundamental change or pursuant to settlements upon conversion, (y) customary rights of the holders of such Debt to convert or exchange such Debt as described in the definition of “Convertible Debt”, and (z) customary acceleration rights after an event of default); and
(k) other without duplicating any Debt permitted above, unsecured Debt of any Subsidiary of the Parent, and secured Debt of the Parent or any Subsidiary that is secured by liens permitted under Section 6.2(k); provided that, in each case, (i) the Parent shall be in compliance, on a pro forma basis after giving effect to any incurrence of such Debt, with each Guarantee Ratio and the other financial covenants contained in addition this Agreement recomputed as of the last day of the most recently ended fiscal quarter of the Parent for which Financial Statements have been provided (or required to be provided) pursuant to Section 5.2(a) or (b) as if the incurrence of the unsecured Debt listed abovein question had occurred on the first day of each relevant period for testing such compliance (as demonstrated, with respect to any such Debt in excess of $25,000,000 and as otherwise requested by the Administrative Agent, in a duly executed Compliance Certificate dated as of the date such Debt is incurred), (ii) no Default or Event of Default exists, both immediately before and after giving effect to each incurrence of such Debt, and (iii) the aggregate principal amount of such Debt, when combined with all other Debt incurred after the Closing Date that is secured by Liens under Section 6.2(k) or that is guaranteed by (or has as an aggregate outstanding amount obligor) a Subsidiary that directly owns or operates any Rig (other than Debt incurred under Section 6.1(e)) (or the Parent, if the Parent directly owns or operates any Rig), shall not at any time exceeding exceed the greater of (A) $2,000,000500,000,000 and (B) 10% of the Net Worth of the Parent and its consolidated Subsidiaries (determined on a pro forma basis as of the end of each of the most recently completed fiscal quarter for which Financial Statements have been provided (or required to be provided) pursuant to Section 5.2(a) or (b)).
Appears in 1 contract
Debt. Not, The Borrower shall not (and shall not suffer or permit any other Loan Party of its Domestic Subsidiaries to, ) create, incur, assume or suffer permit to exist any Debt, except:
(a) Obligations under this Agreement and the other Loan DocumentsObligations;
(b) Debt incurred or assumed after the Closing Date which is secured by Liens permitted by Section 11.2(d), and extensions, renewals and refinancings thereof; provided, that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal QuartersDeferred Taxes;
(c) purchase money Debt secured by purchase money Liens and Capital Leases permitted under clause (d) or (e) of the Parent or Company to any Wholly-Owned Subsidiary or Section 6.7 (and refinancings of such purchase money Debt of any Wholly-Owned Subsidiary to the Company, the Parent or another Wholly-Owned Subsidiary; provided that permitted by such clause (i) the sum of (A) the aggregate principal amount outstanding of any such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been pledged to the Administrative Agent in accordance with the terms of the Guaranty and Pledge Agreementd));
(d) Hedging Obligations Debt incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes by SFC under the Receivables Funding Documents and not for speculationthe Ancillary Services and Lease Agreement;
(e) Debt described on which constitutes Guaranteed Debt permitted under Section 6.6;
(f) any other Debt owing by the Borrower or any Domestic Subsidiary in an aggregate principal amount not to exceed $25,000,000, provided, that (a) the Borrower supply to the Agent confirmation, in form and substance acceptable to the Agent, that the terms and conditions governing such Debt do not (1) provide for the grant of a Lien with respect to any of the Borrower’s Accounts, Inventory or other assets sold, contributed or in which a Lien has been granted pursuant to the Receivables Funding Documents or the Collateral Documents (collectively, “Restricted Assets”), or (2) restrict or prohibit the sale of, or the granting of a security interest in, any Restricted Assets by the Borrower, and (b) to the extent that the holder of such Debt is to obtain a Lien upon any of the Borrower’s Real Property, such holder shall execute and deliver to the Agent a mortgagee or landlord waiver acceptable in form and substance to the Agent;
(g) Debt which constitutes intercompany Debt permitted under Section 6.2;
(h) hedging obligations under swaps, caps and collar arrangements arranged by a Lender entered into for the sole purposes of hedging in ordinary course of business and consistent with industry practices (and not for speculative purposes); and
(i) other Debt set forth in Schedule 11.1 and 3.11, but not (I) any extension, renewal increase in the amount of any thereof or (II) any refinancing or refunding of any thereof so long as the Debt resulting from such refinancing or refunding (1) does not have an aggregate principal amount thereof is in excess of the Debt that was refinanced or refunded, (2) does not increased;
mature sooner than the Debt being refinanced or refunded, (f3) Suretyship Liabilities arising with respect does not rank at the time of such refinancing or refunding senior to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions permitted under Section 11.4;
(g) up to $2,000,000 in the aggregate of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 being refinanced or refunded and (ii4) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do does not constitute Acquisitions;
contain terms (h) convertible Debt issued by Parentincluding, so long as (i) the stated maturity of such Debt shall be a date not earlier than six months after the stated maturity date of the Loans as of the date of issuancewithout limitation, (ii) no mandatory redemption requirements prior terms relating to maturity other than upon a Change of Control or pursuant to other customary event risk featuressecurity, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuanceamortization, after giving effect to the intended use of proceeds of such convertible Debtinterest rate, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurementpremiums, and (iv) the restrictive covenants and fees, covenants, events of default relating and remedies) materially less favorable to such Debt are generally no more restrictive the Borrower or to the Lenders than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv));
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) of Section 11.10); and
(k) other Debt, in addition applicable to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,000being refinanced or refunded.
Appears in 1 contract
Sources: Credit Agreement (Synnex Corp)
Debt. Not, and not permit any other Loan Party to, create, incur, assume or suffer to exist any Debt, except:
(a) Obligations under this Agreement and the other Loan Documents;
(b) Debt incurred or assumed after the Closing Date which is secured by Liens permitted by Section 11.2(d), and extensions, renewals and refinancings thereof; provided, that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters;
(c) Debt of the Parent or Company to any domestic Wholly-Owned Subsidiary or Debt of any domestic Wholly-Owned Subsidiary to the Company, the Parent Company or another domestic Wholly-Owned Subsidiary; provided that (i) the sum of (A) the aggregate principal amount outstanding of any such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been and pledged and delivered to the Administrative Agent in accordance with pursuant to the terms Collateral Documents as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations of the Guaranty Company hereunder in a manner reasonably satisfactory to the Administrative Agent; and Pledge Agreementprovided further that this Section shall not apply to Inter-Company/Subsidiary Loans as defined in Section 10.6;
(d) Subordinated Debt;
(e) Hedging Obligations approved by Administrative Agent and incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
(ef) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased;
(fg) Suretyship the Debt to be Repaid (so long as such Debt is repaid on the Closing Date with the proceeds of the initial Loans hereunder);
(h) Contingent Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions dispositions permitted under Section 11.4;
(g) up to $2,000,000 in the aggregate of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitions;
(h) convertible Debt issued by Parent, so long as (i) the stated maturity of such Debt shall be a date not earlier than six months after the stated maturity date of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv));11.5; AND
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1UP TO $1,500,000 GUARANTY OF DEBT OF RENAISSANCE ALLIANCE INSURANCE SERVICES, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan PartyLLC, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties deriveAN UNAFFILIATED AGENCY, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations;SO LONG AS COMPANY ASSIGNS ALL RIGHTS TO PROCEEDS FROM THE DISPOSITION OF PLEDGED SHARES TO LENDER PURSUANT TO THE SECURITY AGREEMENT; AND
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) of Section 11.10); and
(k) other unsecured subordinated Debt, in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,0005,000,000, annually.
Appears in 1 contract
Debt. NotOther than, with respect to the Property Owners, the “Permitted Indebtedness” (as such term is defined in the Senior Loan Agreement as in effect on the Closing Date) Borrowers shall take such actions as shall be necessary to prevent any Property Owner or Operating Lessee from, and not permit any other Loan Party toBorrowers shall not, as applicable, create, incur, incur or assume or suffer to exist any Debt, except:
(a) Obligations under this Agreement and the other Loan Documents;
(b) Debt incurred or assumed after the Closing Date which is secured by Liens permitted by Section 11.2(d), and extensions, renewals and refinancings thereof; provided, that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters;
(c) Debt of the Parent or Company to any Wholly-Owned Subsidiary or Debt of any Wholly-Owned Subsidiary to the Company, the Parent or another Wholly-Owned Subsidiary; provided that following: (i) indebtedness for borrowed money or for the sum deferred purchase price of property or services; (ii) indebtedness evidenced by a note, bond, debenture or similar instrument; (iii) any letter or letters of credit issued for the account of a Borrower or a Property Owner or Operating Lessee to the extent there are unreimbursed amounts drawn thereunder; (iv) indebtedness secured by a Lien on any property owned by any Borrower or any Property Owner or Operating Lessee (whether or not such indebtedness has been assumed) except obligations for impositions which are not yet due and payable; (v) any obligation of any Borrower or any Property Owner or Operating Lessee directly or indirectly guaranteeing any indebtedness or other obligation of any other Person in any manner; (vi) any payment obligations of any Borrower or any Property Owner or Operating Lessee under any interest rate protection agreement (including, without limitation, any interest rate swaps, caps, floors, collars or similar agreements) and similar agreements (except with respect to the Interest Rate Cap Agreement or any replacement thereof (and the “Interest Rate Cap Agreement” as defined in the Senior Loan Agreement or any replacement thereof), which obligations (other than replacements) each Borrower represents have been satisfied in full by a one-time payment made on or prior to the date hereof); or (vii) any contractual indemnity obligations of any Borrower or any Property Owner or Operating Lessee other than as set forth in (A) the aggregate principal amount outstanding of any such Debt owed by a foreign Subsidiary and Property Management Agreements or (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing other normal and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been pledged to the Administrative Agent in accordance with the terms of the Guaranty and Pledge Agreement;
(d) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
(e) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased;
(f) Suretyship Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions permitted under Section 11.4;
(g) up to $2,000,000 agreements entered into in the aggregate ordinary course of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitions;
(h) convertible Debt issued by Parent, so long as (i) the stated maturity of such Debt shall be a date not earlier than six months after the stated maturity date of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv));
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) of Section 11.10); and
(k) other Debt, in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,000business.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Strategic Hotel Capital Inc)
Debt. NotCreate, and not incur, assume or suffer to exist, or permit any other Loan Party to, of its Subsidiaries to create, incur, assume or suffer to exist exist, any Debt, except:
(ai) in the case of the Borrowers, Debt owed to a wholly owned Subsidiary of such Borrower, which Debt (x) shall constitute Pledged Debt, (y) shall be on subordinated terms acceptable to the Administrative Agent and (z) shall be evidenced by promissory notes in form and substance satisfactory to the Administrative Agent and such promissory notes shall be pledged as security for the Obligations of the holder thereof under this Agreement the Loan Documents to which such holder is a party and delivered to the other Collateral Agent pursuant to the terms of the Security Agreement, and
(ii) in the case of any Subsidiary of the Borrowers, Debt owed to a Borrower or to a wholly owned Subsidiary of a Borrower, provided that, in each case, such Debt (x) shall constitute Pledged Debt, (y) shall be on terms acceptable to the Administrative Agent and (z) shall be evidenced by promissory notes in form and substance satisfactory to the Administrative Agent and such promissory notes shall be pledged as security for the Obligations of the holder thereof under the Loan Documents to which such holder is a party and delivered to the Collateral Agent pursuant to the terms of the Security Agreement; and
(iii) in the case of any Loan Party and its Subsidiaries:
(A) Debt in respect of either Secured Hedge Agreements or unsecured Hedge Agreements designed to hedge against fluctuations in interest rates and foreign exchange rates incurred in the ordinary course of business and consistent with prudent business practice (as determined by Ceradyne in its reasonable business judgment);
(B) Debt under the Loan Documents;
(bC) so long as no Default has occurred or is continuing, Debt incurred or assumed after the Closing Date which is secured by Liens permitted by Section 11.2(d), and extensions, renewals and refinancings thereof; provided, that 5.02(a)(iv) not to exceed in the aggregate amount of all such Debt $10,000,000 at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quartersoutstanding;
(cD) Debt of Capitalized Leases not to exceed in the Parent aggregate $15,000,000 at any time outstanding;
(E) so long as no Default has occurred or Company to any Wholly-Owned Subsidiary or is continuing, Debt of any Wholly-Owned Person that becomes a Subsidiary to the Company, the Parent or another Wholly-Owned Subsidiary; provided that (i) the sum of (A) the aggregate principal amount outstanding of any such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made Loan Party after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been pledged to the Administrative Agent in accordance with the terms of Section 5.02(f) which Debt does not exceed $5,000,000 in the Guaranty aggregate and Pledge Agreementis existing at the time such Person becomes a Subsidiary of such Loan Party (other than Debt incurred solely in contemplation of such Person becoming a Subsidiary of such Loan Party);
(dF) Hedging Obligations incurred performance guarantees in favor respect of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculationobligations of any Loan Party;
(eG) Unsecured Debt described on Schedule 11.1 and consisting of the deferred purchase price of acquisitions permitted hereunder (including any extensionportion of such purchase price determined after the closing of the relevant acquisition), renewal or refinancing thereof so long as the principal amount thereof is not increased;
(f) Suretyship Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions permitted under Section 11.4;
(g) up to $2,000,000 in the aggregate of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitions;
(h) convertible Debt issued by Parent, so long as (i) the stated maturity provided that all of such Debt shall be a date not earlier than six months after exceed $10,000,000 in the stated maturity date aggregate;
(H) so long as no Default has occurred and is continuing, other secured Debt of the Loans as Loan Parties in an aggregate principal amount not to exceed $3,000,000;
(I) Subordinated Debt; provided that in the case of the date each issuance of issuanceSubordinated Debt, (iii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after would be caused by the issuance of such issuanceSubordinated Debt, (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower will be in compliance with the financial covenants specified in Section 5.04 of this Agreement on a pro forma basis through the Termination Date for the Term Facility after giving effect to the intended use issuance of proceeds of any such convertible Subordinated Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iviii) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants Borrower shall have complied with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv)Section 2.06(b)(ii);
(i) Suretyship Liabilities with respect to (AJ) Debt otherwise permitted under this Section 11.1, consisting of Capitalized Leases entered into pursuant to Permitted Sale and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) of Section 11.10)Lease-back Arrangements; and
(kK) so long as no Default has occurred and is continuing, other Debt, in addition to the unsecured Debt listed above, in an aggregate outstanding amount not to exceed $10,000,000; provided, that, notwithstanding the foregoing, the aggregate amount of all Debt of Subsidiaries of the Loan Parties that are not Guarantors hereunder shall at any no time exceeding exceed $2,000,0005,000,000.
Appears in 1 contract
Sources: Credit Agreement (Ceradyne Inc)
Debt. Not, and Borrower shall not permit any other Loan Party to, create, incur, assume or suffer to exist have any Debt, except:
(a) Obligations under this Agreement other than Permitted Debt and the other Loan Documents;
(b) Debt incurred in connection with, and substantially simultaneously with, the repayment in full of the Loan. No direct or assumed indirect equityholder of any Co-Borrower, except for any Qualified Equityholder and any direct or indirect equityholders of any Qualified Equityholder, shall have any indebtedness for borrowed money (or any preferred equity having the characteristics of indebtedness for borrowed money, including a mandatory redemption date and a current pay preferred return) other than, as applicable, the Loan, the Mezzanine Loans, the Permitted Indebtedness, the “Permitted Indebtedness” under and as defined in the Mezzanine Loan Agreements, and in the case of American Casino & Entertainment Properties LLC, unsecured trade payables, not evidenced by a note, incurred in the ordinary course of business and customarily paid within 90 days after the Closing Date which is secured by Liens permitted by Section 11.2(d), and extensions, renewals and refinancings thereof; provided, that the aggregate amount of all such Debt at any time outstanding date incurred. The foregoing shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters;
(c) Debt of the Parent or Company to any Wholly-Owned Subsidiary or Debt of any Wholly-Owned Subsidiary to the Company, the Parent or another Wholly-Owned Subsidiary; provided that (i) restrict the sum making of (A) the aggregate principal amount outstanding of any such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof unsecured loans by the Company or any domestic Subsidiary members of W2007/ACEP Holdings, LLC (the “WH/HG JV”) to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 other or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been pledged to the Administrative Agent WH/HG JV in accordance with the terms that certain Amended and Restated Limited Liability Company Agreement of the Guaranty and Pledge Agreement;
(d) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
(e) Debt described on Schedule 11.1 and any extensionW2007/ACEP Holdings, renewal or refinancing thereof so long as the principal amount thereof is not increased;
(f) Suretyship Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions permitted under Section 11.4;
(g) up to $2,000,000 in the aggregate of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitions;
(h) convertible Debt issued by ParentLLC, so long as (i) the stated maturity of such Debt shall be a date not earlier than six months after the stated maturity date of the Loans dated as of the date of issuancehereof, or (ii) no mandatory redemption requirements prior to maturity other limit the incurrence of Debt by (x) Persons that own less than upon a Change 10% of Control the direct or pursuant to other customary event risk featuresindirect equity interests in Borrower, (iiiy) no Unmatured Event of Default or Event of Default shall have occurred Persons for whom direct and be continuing either immediately before or immediately after such issuance, after giving effect to indirect equity interests in Borrower do not comprise the intended use of proceeds majority of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, Person’s assets and (ivz) natural persons, provided that in the restrictive covenants case of each of (x), (y) and events of default relating to (z), such Debt are generally no more restrictive than those set forth is not secured by a pledge of the direct or indirect equity interests in Borrower in violation of the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv));
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) terms of Section 11.10); and
(k7.1(f) other Debt, in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,000hereof.
Appears in 1 contract
Sources: Loan Agreement (American Casino & Entertainment Properties LLC)
Debt. Not, and not permit any other Loan Party to, create, incur, assume or suffer to exist any Debt, except:
(a) Obligations under this Agreement and the other Loan Documents;
(b) Debt incurred or assumed after the Closing Date which is secured by Liens permitted by Section 11.2(d), and extensions, renewals and refinancings thereof; provided, provided that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters$3,500,000;
(c) Debt of the Parent or Company to any domestic Wholly-Owned Subsidiary or Debt of any domestic Wholly-Owned Subsidiary to the Company, the Parent Company or another domestic Wholly-Owned Subsidiary; provided that (i) that, upon the sum reasonable request of (A) the aggregate principal amount outstanding of any Administrative Agent, such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been and pledged and delivered to the Administrative Agent in accordance with pursuant to the terms Collateral Documents as additional collateral security for the Obligations, and the obligations under such demand note shall be subordinated to the Obligations of the Guaranty and Pledge AgreementCompany hereunder in a manner reasonably satisfactory to the Administrative Agent;
(d) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
(e) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increasedincreased in excess of the amount set forth on such Schedule;
(e) Contingent Liabilities arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 11.5;
(f) Suretyship Contingent Liabilities listed on Schedule 11.1 and Contingent Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions permitted under Section 11.4hereunder;
(g) up to $2,000,000 Guaranties by the Company and/or its Subsidiaries in respect of Debt of the aggregate of (i) Acquired Debt assumed in Acquisitions Company or its domestic Subsidiaries permitted under by this Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitions11.1;
(h) convertible Guaranties by the Company and/or its Subsidiaries in respect of Debt issued by Parentof Joint Ventures, so long as (i) the stated maturity if such Joint Ventures are permitted under this Agreement, up to an aggregate amount of $3,000,000 for all such Debt shall be a date not earlier than six months after the stated maturity date of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that being guarantied by the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv))its Subsidiaries;
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1Hedging Obligations incurred in favor of Administrative Agent, any Lender or any of their Affiliates for bona fide hedging purposes and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitationsnot for speculation;
(j) Suretyship Liabilities that constitute Investments permitted Debt owing to any trust created under Section 11.10 a supplemental executive retirement program of the Company;
(unless only permitted k) Unsecured Subordinated Debt up to an aggregate principal amount outstanding at any time of Twenty Five Million Dollars ($25,000,000), approved prior to the incurrence thereof by clause (b) of Section 11.10)the Administrative Agent and subject, at all times after the incurrence thereof, to a Subordination Agreement; and
(kl) other Debt, in addition Debt of the Company owing to the Debt listed above, Canadian Entities up to $7,500,000 in an aggregate outstanding amount not at any time exceeding $2,000,000the aggregate.
Appears in 1 contract
Sources: Credit Agreement (Cpi Corp)
Debt. NotBorrower will not incur, create, assume or permit to exist, and will not permit any other Loan Party toSubsidiary to incur, create, incur, assume or suffer permit to exist exist, any Debt, except:
except (a) Obligations under this Agreement and the other Loan Documents;
Obligations, (b) purchase money Debt incurred and Capitalized Lease Obligations in an aggregate principal amount which does not exceed $250,000 outstanding (or, in the case of the SPEs, such amounts as may be set forth in the applicable SPE Mortgage Debt documents) at any time, (c) Debt arising from the endorsement of instruments for collection in the ordinary course of business, (d) Debt owed by (i) one Credit Party to another Credit Party or assumed after (ii) any Subsidiary to Borrower, (e) obligations of any Credit Party for taxes, assessments or other governmental charges which are not at the Closing Date time delinquent or thereafter payable without penalty or being contested in good faith by appropriate proceedings and, in each case, for which is secured by Liens such Credit Party maintains adequate reserves in accordance with GAAP, (f) the SPE Mortgage Debt, (g) Debt arising from one or more judgments which do not, in themselves, give rise to an Event of Default, provided such judgments are satisfied or stayed within thirty (30) days of their rendering, (h) Debt set forth on Schedule 9.1, (i) Debt arising under Rate Management Transactions so long as entered into for bona fide hedging of liabilities of the Borrower and its Subsidiaries and not for speculative purposes, and (j) unsecured Debt of Borrower or any of its Subsidiaries to the extent not permitted by Section 11.2(d)any of the foregoing clauses, and extensions, renewals and refinancings thereof; provided, provided that the aggregate outstanding principal amount of all such Debt pursuant to this clause (j) does not exceed $250,000 at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as or, in the case of the previous four Fiscal Quarters;
(c) Debt of the Parent or Company to any Wholly-Owned Subsidiary or Debt of any Wholly-Owned Subsidiary to the CompanySPEs, the Parent or another Wholly-Owned Subsidiary; provided that (i) the sum of (A) the aggregate principal amount outstanding of any such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall amounts as may be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been pledged to the Administrative Agent in accordance with the terms of the Guaranty and Pledge Agreement;
(d) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
(e) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased;
(f) Suretyship Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions permitted under Section 11.4;
(g) up to $2,000,000 in the aggregate of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitions;
(h) convertible Debt issued by Parent, so long as (i) the stated maturity of such Debt shall be a date not earlier than six months after the stated maturity date of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that applicable SPE Mortgage Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (ivdocuments));
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) of Section 11.10); and
(k) other Debt, in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,000.
Appears in 1 contract
Sources: Loan Agreement (HG Holdings, Inc.)
Debt. Not, and not permit any other Loan Party Subsidiary to, create, incur, assume or suffer to exist any Debt, except:
(a) Obligations under this Agreement and the other Loan Documents;
(b) Debt incurred or assumed after the Closing Date which is secured by Liens permitted by Section 11.2(d), and extensions, renewals and refinancings thereof; provided, provided that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters$15,000,000;
(c) Debt of the Parent or Company to any domestic Wholly-Owned Subsidiary or Debt of any domestic Wholly-Owned Subsidiary to the Company, the Parent Company or another domestic Wholly-Owned Subsidiary; provided that (i) the sum of (A) the aggregate principal amount outstanding of any such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been pledged to the Administrative Agent in accordance with the terms of the Guaranty and Pledge Agreement;
(d) Subordinated Debt;
(e) Hedging Obligations approved by Administrative Agent and incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
(ef) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased;
(fg) Suretyship the Debt to be Repaid (so long as such Debt is repaid on the Closing Date with the proceeds of the initial Loans hereunder);
(h) Contingent Liabilities (i) arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 11.5 and purchasers in connection with Dispositions dispositions permitted under Section 11.4;11.5; and (ii) with respect to other customary indemnification obligations entered into in the ordinary course of business, such as directors and officers indemnification obligations, indemnification obligations in purchase orders, Capital Leases, and other agreements that entered into in the ordinary course of business; and
(gi) up to $2,000,000 in the aggregate 500,000 of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions unsecured Hedging Obligations, which do not constitute Acquisitions;
(h) convertible Debt issued by Parent, so long as (i) require the stated maturity of such Debt shall be a date not earlier than six months after the stated maturity date approval of the Loans as of Administrative Agent, in which the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon counterparty is not a Change of Control Lender or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv));
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitationsan Affiliate thereof;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 up to $30,000,000 (unless only permitted by clause (bin the aggregate outstanding at any time) of Acquired Debt acquired or assumed in Permitted Acquisitions; provided, however, that, notwithstanding the foregoing, the aggregate amount of Debt outstanding at any one time under clauses (j) and (k) of this Section 11.10); and11.1 may not exceed $30,000,000;
(k) other unsecured Debt, in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,00030,000,000; provided, however, that, notwithstanding the foregoing, the aggregate amount of Debt outstanding at any one time under clauses (j) and (k) of this Section 11.1 may not exceed $30,000,000; or any guarantees of any of the above.
Appears in 1 contract
Sources: Credit Agreement (Multi Color Corp)
Debt. Not, and not permit any other Loan Party to, createCreate, incur, assume or suffer to exist any Debt, exceptDebt other than:
(ai) Obligations under Debt incurred pursuant to this Agreement and the other Loan DocumentsAgreement;
(bii) unsecured Subordinated Debt and Permitted Subordinated Debt;
(iii) accrued expenses, current trade payables and other current liabilities arising in the ordinary course of business and not incurred through the borrowing of money;
(iv) unsecured Debt (x) of any Subsidiary to the Borrower (y) of any Subsidiary to a Subsidiary and (z) of the Borrower to any Subsidiary, provided that any such Debt under this clause (iv) is incurred in the ordinary course of business consistent with past practice and is evidenced by one or more promissory notes pledged to the Agent pursuant to the Security Agreements;
(v) Contingent Obligations permitted by SECTION 6.4;
(vi) other Consolidated Debt (including, without limitation, Debt secured by liens described in clauses (E) and (G) of the definition of Permitted Liens and Capital Lease Obligations) in an aggregate principal amount at any time outstanding not to exceed $20,000,000 for the Borrower and its Subsidiaries; and
(vii) Debt of the Borrower under any Interest Rate Protection Agreements (if any) entered into with one or more Lenders in respect of the Debt incurred or assumed pursuant to this Agreement; provided that the notional amount of all such agreements at any time shall not exceed the aggregate amount of the Commitments at such time. The Lenders shall use their best commercially reasonable efforts to respond to a request from the Borrower for approval of Subordinated Debt (on terms acceptable to the Required Lenders in their sole discretion) within five (5) Business Days after the Closing Date which is secured by Liens permitted by Section 11.2(d), Agent's and extensions, renewals the Lender's receipt of information regarding the amount and refinancings material terms thereof; provided, that however, the aggregate amount of all failure to approve or disapprove such Subordinated Debt at any time outstanding during such period shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters;
(c) Debt of the Parent or Company to any Wholly-Owned Subsidiary or Debt of any Wholly-Owned Subsidiary to the Company, the Parent or another Wholly-Owned Subsidiary; provided that (i) the sum of (A) the aggregate principal amount outstanding of any such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been pledged to the Administrative Agent in accordance with the terms of the Guaranty and Pledge Agreement;
(d) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
(e) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased;
(f) Suretyship Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions permitted under Section 11.4;
(g) up to $2,000,000 in the aggregate of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitions;
(h) convertible Debt issued by Parent, so long as (i) the stated maturity of such Debt shall be a date not earlier than six months after the stated maturity date of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv));
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) of Section 11.10); and
(k) other Debt, in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,000approval.
Appears in 1 contract
Sources: Loan Agreement (American Oncology Resources Inc /De/)
Debt. NotIncur, and not permit any other Loan Party assume, guarantee or otherwise become or remain directly or indirectly liable with respect to, create, incur, assume or suffer to exist any Debt, exceptexcept for:
(a) Obligations Debt incurred or created hereunder and under this Agreement and the other Loan DocumentsDocuments (including Debt created under Section 2.09);
(b) Debt incurred outstanding on (or assumed after made pursuant to binding commitments existing on) the Closing Effective Date which is secured by Liens permitted by Section 11.2(d), as set forth on Schedule 6.01(b) and extensions, renewals and refinancings Permitted Refinancings thereof; provided, that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters;
(c) (i) Debt incurred or assumed by the Company or any of the Parent Restricted Subsidiaries for the purpose of financing (except with respect to the equipment and fixed assets set forth on Schedule 6.01(c), within 180 days of the applicable acquisition, lease, construction or Company to improvement) all or any Wholly-Owned Subsidiary part of the cost of acquiring, leasing, constructing or Debt improving any equipment or fixed asset (including through Capital Leases) (whether through the direct purchase of assets or the Equity Interests of any Wholly-Owned Subsidiary Person owning such assets) and (ii) Permitted Refinancings thereof; provided that the aggregate principal amount at any time outstanding of Debt incurred pursuant to this paragraph (c) shall not exceed $300,000,000;
(d) intercompany Debt among the Company, the Parent or another Wholly-Owned SubsidiaryCompany and its Subsidiaries; provided that (ix) upon request of the sum of Administrative Agent any such Debt owed to a Loan Party shall be evidenced by a promissory note pledged and delivered to the Administrative Agent as additional security for the Obligations, together with an appropriate allonge or note power, (Ay) the aggregate principal amount outstanding of with respect to any such Debt owed by a foreign Loan Party to a Subsidiary and (B) that is not a Loan Party, such Debt shall be subordinated in right of payment to the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition Obligations pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000the Affiliate Subordination Agreement, and (iiz) any such Debt owed by a foreign Subsidiary corresponding Investment shall be evidenced permitted by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been pledged to the Administrative Agent in accordance with the terms of the Guaranty and Pledge Agreement;
Sections 6.07(c), (dr) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation(t);
(e) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the of Subsidiaries that are not Loan Parties in an aggregate principal amount thereof is outstanding at any time not increasedto exceed the Dollar equivalent of $300,000,000;
(f) Suretyship Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions permitted under Section 11.4;
(g) up to $2,000,000 in the aggregate Debt consisting of (i) Acquired the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(i) Debt assumed in Acquisitions permitted under Section 11.4 and connection with Permitted Acquisitions; provided, that, (iix) such Debt secured by property acquired by a Loan Party and assumed by such Loan Party was not incurred in transactions which do not constitute Acquisitions;
(h) convertible Debt issued by Parent, so long as (i) the stated maturity contemplation of such Debt shall be a date not earlier than six months after the stated maturity date of the Loans as of the date of issuancePermitted Acquisition, (iiy) no mandatory redemption requirements both immediately prior and after giving effect to maturity other than upon a Change of Control or any Debt incurred pursuant to other customary event risk featuresthis clause (g), (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that and (z) the Company is and the Restricted Subsidiaries shall be in pro forma compliance with all the financial ratios and restrictions covenants set forth in Section 11.12 6.13 or Section 6.14, as applicable, determined on a pro forma basis (A) with respect to Section 6.13, as of the last day of the most recently ended four fiscal quarters of the Company for which financial statements have been delivered pursuant to Section 5.01(a) or 5.01(b), as applicable, and (B) with respect to Section 6.14, as of the date of measurementthereof, and (ii) any Permitted Refinancing thereof;
(h) [reserved];
(i) Debt representing deferred compensation, severance and health and retirement benefits or the equivalent thereof to employees, directors, management and consultants of the Company or the Restricted Subsidiaries incurred in the ordinary course of business;
(j) Debt consisting of obligations with respect to indemnification, the adjustment of the purchase price (including customary earnouts) or similar adjustments incurred in connection with a Permitted Acquisition or any other Investment or Disposition expressly permitted hereunder;
(i) Debt arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided that such Debt is extinguished within 5 Business Days of its incurrence and (ii) Debt in respect of credit card processing agreements, automatic clearinghouse arrangements, overdraft protections and similar arrangements in each case in connection with cash management and deposit accounts and in the ordinary course of business; provided that any such Debt (x) (other than credit card processing agreements or similar arrangements) is owed to the financial institutions providing such arrangements (or any Affiliate thereof) and (y) is extinguished within 30 days of its incurrence;
(l) Debt incurred by the Company or any Restricted Subsidiary constituting reimbursement obligations with respect to letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments, in each case, issued or created in the ordinary course of business, including in respect of workers’ compensation claims, health, disability or other employee benefits (including with respect to immediate family members of employees, directors or members of management) or property, casualty or liability insurance or self-insurance or other Debt with respect to reimbursement-type obligations regarding workers compensation claims or obligations referred to in paragraph (m) below, letters of credit in the nature of a security deposit (or similar deposit or security) given to a lessor under an operating lease of Real Estate under which such Person is lessee, and letters of credit in connection with the maintenance of, or pursuant to the requirements of, environmental or other permits or licenses from Governmental Authorities, and any refund, replacement, refinancing or defeasance of any of the foregoing;
(m) obligations in respect of surety, stay, customs and appeal bonds, performance bonds and performance and completion guarantees and similar obligations provided by the Company or any of the Restricted Subsidiaries, in each case, issued or created in the ordinary course of business and consistent with past practice;
(n) Debt arising under Swap Agreements not incurred for purposes of speculation;
(o) Debt consisting of the accretion of original issue discount with respect to Permitted Convertible Notes;
(p) Guarantees of Debt of the Company or any Subsidiary, which Debt is otherwise permitted hereunder; provided that (x) if such Debt is subordinated to the Obligations, such guarantee shall be subordinated to the same extent and (y) no such Guarantee by a Loan Party shall be permitted under this paragraph (p) of Debt of a subsidiary that is not a Loan Party, other than Guarantees constituting an Investment permitted under Section 6.07;
(q) Debt owing to current or former officers, directors, managers, consultants or employees of the Company or immediate family members to finance the purchase or redemption of Equity Interests of the Company (or any direct or indirect parent of the Company) permitted by Section 6.03(a) and Permitted Refinancings thereof;
(r) Debt of the Company or any Restricted Subsidiary owing to any joint venture (regardless of the form of legal entity) that is not a subsidiary arising in the ordinary course of business of the Company and its subsidiaries in connection with the cash management operations (including with respect to intercompany self-insurance arrangements); and
(s) Debt of any Loan Party (including Permitted Convertible Notes), if at the time of issuance or incurrence thereof:
(i) no Default or Event of Default then exists or would result therefrom;
(ii) such Debt does not have a scheduled maturity earlier than 91 days after the Maturity Date in effect at the time of issuance or incurrence of such Debt (other than an earlier maturity date for customary fundamental change, make-whole fundamental change, change of control or other similar event risk provisions or customary bridge financings which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for a maturity date earlier than 91 days after the Maturity Date), provided that for the avoidance of doubt, any provision of Permitted Convertible Notes (x) providing for Satisfaction of Conversion Obligation thereof or (y) permitting cash interest shall, in each case, not cause the Permitted Convertible Notes to fail to satisfy the provisions of this clause (ii);
(iii) such Debt does not have any mandatory redemption, prepayment, amortization, sinking fund or similar obligations prior to the Maturity Date (other than pursuant to (x) fundamental change, make-whole fundamental change, change of control or other similar event risk provisions and, in the case of term loans or senior notes that are not convertible into Equity Interests only, customary asset sale (or casualty or condemnation event), extraordinary receipts and/or (solely in the case of term loans) excess cash flow offer or repayment provisions and, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Debt permitted hereunder which meets the requirements of this clause and customary asset sale (or casualty or condemnation event) repayment provisions, and (y) in the case of term loans, nominal amortization requirements not to exceed 1% per annum of the initial aggregate principal amount of such Debt), provided that for the avoidance of doubt, any provision of Permitted Convertible Notes (x) providing for Satisfaction of Conversion Obligation thereof or (y) permitting cash interest shall, in each case, not cause the Permitted Convertible Notes to fail to satisfy the provisions of this clause (iii);
(iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit applicable definitive documentation for such Debt are not more materially restrictive, taken as a whole, than the covenants and events of default set forth in this Agreement (it being understood and agreed as determined by the Company in good faith), except for (x) provisions applicable only to periods after the Maturity Date in effect at the time of effectiveness of the applicable definitive documentation for such Debt, (y) provisions related to any equity provisions of such Debt or (z) terms that are customary market terms for Debt that has of such type as reasonably determined by the Borrower Representative;
(v) to the extent such Debt is subordinated, the terms of such Debt provide for customary payment or lien subordination, as applicable, to the Obligations as reasonably determined by the Administrative Agent in good faith;
(vi) which Debt:
(A) no financial covenants, may be unsecured; or
(B) no restrictive covenants secured; provided that if such Debt is secured:
(1) prior to the Fixed Asset Release Event, to the extent such Debt is secured by assets of the Company and its Subsidiaries constituting Collateral, the Lien on such Collateral securing such Debt shall be junior to the Lien on such Collateral securing the Obligations;
(2) after the Fixed Asset Release Event, (i) to the extent such Debt is secured by assets of the Company and its Subsidiaries constituting ABL Collateral, the Lien on such ABL Collateral securing such Debt shall be junior to the Lien on such ABL Collateral securing the Obligations and (ii) to the extent such Debt is secured by assets of the Company and its Subsidiaries constituting Fixed Assets, the Obligations shall be secured by a Lien on such Fixed Assets, which Lien may be junior to the Lien on such Fixed Assets securing such Debt;
(3) if secured by a Lien on ABL Collateral or Fixed Assets, at the time of the entering into of any such Debt, an Acceptable Intercreditor Agreement shall have been entered into and shall be in full force and effect and the Loan Parties shall have complied with respect their obligations under Section 5.13(c), which shall provide, (I) in connection with any Debt (other than, after the Fixed Asset Release Event, a Fixed Asset Facility), inter alia, that the Administrative Agent, for the benefit of the Secured Parties, shall retain a first priority lien on all Collateral or (II) in connection with any Fixed Asset Facility entered into after the Fixed Asset Release Event, inter alia, that the Administrative Agent, for the benefit of the Secured Parties, shall retain a first priority lien on all ABL Collateral and shall have a second priority lien on the Fixed Assets securing such Fixed Asset Facility;
(4) prior to incurrencethe Fixed Asset Release Event, existence such Debt shall not be secured by any Intellectual Property or making by the Equity Interests of liensany Subsidiary the assets of which are comprised primarily of Intellectual Property; provided that if after the Fixed Asset Release Event such Debt is secured by any Intellectual Property or by the Equity Interests of any Subsidiary the assets of which are comprised primarily of Intellectual Property, indebtedness the Obligations shall be secured by a Lien on such Intellectual Property and Equity Interests, which Lien may be junior to the Lien on such Intellectual Property and Equity Interests securing such Debt; and
(5) the aggregate principal amount of all such secured Debt shall not exceed the greater of (A) $3,000,000,000 at any time outstanding and (B) an amount such that after giving pro forma effect to the incurrence of such Debt, the Secured Leverage Ratio is equal to or restricted payments and less than 1.50 to 1.00.
(C) dollar thresholds with respect may be guaranteed on a like basis by the other Loan Parties; and
(vii) such Debt shall be in an aggregate principal amount not to exceed the greater of (A) $5,000,000,000 at any events time outstanding and (B) an amount such that after giving pro forma effect to the incurrence of default such Debt, the Total Leverage Ratio is equal to or less than 4.00 to 1.00. (all unsecured Debt incurred or issued under this clause (s) is referred to as “Permitted Additional Unsecured Indebtedness” and all secured Debt incurred or issued under this clause (s) is referred to as “Permitted Additional Secured Indebtedness”);
(t) Permitted Convertible Notes issued by the Company (which may be guaranteed on a like basis by the other Loan Parties), and Guarantees by any Loan Party of Permitted Convertible Notes issued by Rivian Parent, in each case if at the time of issuance or incurrence thereof:
(i) no Default or Event of Default then exists or would result therefrom;
(ii) such Permitted Convertible Notes do not have a scheduled maturity earlier than 91 days after the Maturity Date in effect at the time of judgments and defaults under issuance or incurrence of such Permitted Convertible Notes (other indebtedness no lower than those an earlier maturity date for customary fundamental change, make-whole fundamental change, change of control or other similar event risk provisions or customary bridge financings which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for a maturity date earlier than 91 days after the Maturity Date), provided that for the avoidance of doubt, any provision of Permitted Convertible Notes (x) providing for Satisfaction of Conversion Obligation thereof or (y) permitting cash interest shall, in each case, not cause the Permitted Convertible Notes to fail to satisfy the provisions of this Agreement for clause (ii);
(iii) such categories Permitted Convertible Notes do not have any mandatory redemption, prepayment, amortization, sinking fund or similar obligations prior to the Maturity Date (other than pursuant to fundamental change, make-whole fundamental change, change of defaultscontrol or other similar event risk provisions and, will satisfy in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Permitted Convertible Notes permitted hereunder which meets the requirements of this clause and customary asset sale (ivor casualty or condemnation event) repayment provisions), provided that for the avoidance of doubt, any provision of Permitted Convertible Notes (x) providing for Satisfaction of Conversion Obligation thereof or (y) permitting cash interest shall, in each case, not cause the Permitted Convertible Notes to fail to satisfy the provisions of this clause (iii);
(iiv) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1the covenants and events of default set forth in the applicable definitive documentation for such Permitted Convertible Notes are no more restrictive, taken as a whole, than the covenants and (B) Debt events of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations default set forth in this Section 11.1 Agreement (as determined by the Company in good faith), except for (x) provisions applicable only to periods after the Maturity Date in effect at the time of effectiveness of the applicable definitive documentation for such Permitted Convertible Notes and (iiy) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and provisions related to any equity provisions of such Debt of other Persons shall count against such limitationsPermitted Convertible Notes;
(jv) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) of Section 11.10); and
(k) other Debt, in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,000.extent such Permitted Convertibl
Appears in 1 contract
Debt. Not, and not permit any other Loan Party to, create, incur, assume or suffer to exist any Debt, except:
(a) Obligations under this Agreement and the other Loan Documents;
(b) Debt incurred of any Guarantor owing to the Company or assumed after the Closing Date which is secured by Liens permitted by Section 11.2(d), and extensions, renewals and refinancings thereof; provided, that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters;
(c) Debt of the Parent or Company to any Wholly-Owned Subsidiary or Debt of any Wholly-Owned Subsidiary to the Company, the Parent or another Wholly-Owned Subsidiaryother Guarantor; provided that (i) to the sum of (A) the aggregate principal amount outstanding of any extent such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by any note or instrument, upon the written request of the Administrative Agent, such instrument shall be a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been pledged and delivered to the Administrative Agent in accordance with pursuant to the terms Collateral Documents, and the obligations under such demand note shall be subordinated to the Obligations of the Guaranty Company hereunder in a manner reasonably satisfactory to the Administrative Agent;
(c) Subordinated Debt, provided that (A) immediately before and Pledge Agreementafter (on a Pro Forma Basis acceptable to the Administrative Agent and supported by such certificates required by the Administrative Agent) the incurrence of any such Subordinated Debt, no Unmatured Event of Default or Event of Default shall exist and the Company shall be in compliance on a Pro Forma Basis with all financial and other covenants contained herein as of the date of incurrence of such Subordinated Debt and (B) all agreements, documents and instruments relating to such Subordinated Debt shall have been delivered to and approved by the Administrative Agent and the Required Lenders prior to the incurrence of such Subordinated Debt;
(d) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculationObligations;
(e) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increasedincreased (and as such amount is reduced from time to time) and no modifications of the terms thereof which are less favorable to the Company or more restrictive on the Company in any material manner shall be permitted;
(f) Suretyship Contingent Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Permitted Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions dispositions permitted under Section 11.4;
(g) up Earnouts with respect to $2,000,000 in Permitted Acquisitions made by the aggregate of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute AcquisitionsCompany;
(h) convertible Debt issued trade accounts payable and accrued expenses arising in the ordinary course which are current or past due only in an amount which is not material in the aggregate for the Company and its Subsidiaries on a consolidated basis, or which are being contested in good faith by Parent, so long as (i) appropriate proceedings and for which adequate reserves are maintained on the stated maturity of such Debt shall be a date not earlier than six months after the stated maturity date books of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv))Company;
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only which is non-recourse to the extent (i) within Company or its Subsidiaries, provided that the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, aggregate amount of such non-recourse Debt does not exceed $20,000,000 and such Debt non-recourse terms and the other terms of other Persons shall count against such limitationsfinancing are reasonably acceptable to the Administrative Agent;
(j) Suretyship Liabilities Debt incurred to finance insurance premiums in the ordinary course of business consistent with past practices of the Company;
(k) Debt of Subsidiaries and Joint Ventures which are not Guarantors owing to the Company or a Guarantor not exceeding at any time outstanding an aggregate amount equal to the book value of five percent (5%) of Total Assets; provided, that constitute any such Debt shall reduce, dollar for dollar, the available transactions permitted by Section 11.10(p);
(l) Debt represented by Facility Leases, Ordinary Course Equipment Leases and Facility Management Agreements;
(m) Debt other than as described in clauses (a) through (l) above and (n) through (s) below not exceeding an aggregate amount equal to the book value of five percent (5%) of Total Assets, provided that not more than 50% of the Debt incurred or otherwise outstanding pursuant to this clause (m) may be secured by Permitted Liens;
(n) intercompany Debt arising pursuant to Investments permitted under Section 11.10 11.10;
(unless only permitted by clause o) Debt arising from Ordinary Course Capital Leases;
(bp) Debt for bank overdrafts or returned items incurred in the ordinary course of Section 11.10)business that are promptly repaid;
(q) unsecured Debt owing to banks or other financial institutions under credit cards issued to officers and employees for, and constituting, business-related expenses in the ordinary course of business; provided, that, such Debt is extinguished within ninety (90) days after the incurrence thereof;
(r) Debt representing deferred compensation to employees of any Loan Party incurred in the ordinary course of business; and
(ks) other Debt, in addition obligations arising under indemnity agreements to title insurers to cause such title insurers to issue the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,000Administrative Agent title insurance policies required hereunder.
Appears in 1 contract
Debt. Not, and not permit any other Loan Party Restricted Subsidiary to, create, incur, assume or suffer to exist any Debt, except:
(a) Obligations under this Agreement and the other Loan Documents;
(b) Nonrecourse Debt incurred or assumed after the Closing Date which is secured by Liens permitted by Section 11.2(d7.02(d), and extensions, renewals and refinancings thereof; provided, provided that the aggregate amount of all such Nonrecourse Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters$100,000,000;
(c) Debt of the Parent or Company Borrower to any Wholly-Owned domestic Restricted Subsidiary or Debt of any Wholly-Owned domestic Restricted Subsidiary of which the Borrower owns, directly or indirectly, not less than 80% of the Equity Interests of such Subsidiary to the Company, the Parent Borrower or another Wholly-Owned domestic Restricted Subsidiary; provided that (i) the sum of (A) the aggregate principal amount outstanding of any such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note and the obligations under such demand note shall be subordinated to the Obligations of the Borrower hereunder in form and substance a manner reasonably satisfactory to the Administrative Agent which has been pledged to the Administrative Agent in accordance with the terms of the Guaranty and Pledge AgreementAgent;
(d) Subordinated Debt provided, that immediately before and immediately after the incurrence of such Subordinated Debt, no Event of Default or Default exists;
(e) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
(ef) Debt described on Schedule 11.1 7.01 and any extension, renewal or refinancing thereof so long as the aggregate principal amount thereof is not increased;
(fg) Suretyship Contingent Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions dispositions permitted under Section 11.47.05;
(gh) Except as provided in Section 7.01(i) below, up to $2,000,000 in the aggregate 75,000,000 of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and 7.06 provided that any such Debt of any Subsidiary is without any recourse to the Borrower or any other Subsidiary (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitionsincluding any other Guarantor);
(hi) convertible Acquired Debt issued by Parent, arising under Acquisitions permitted under Section 7.06 where the primary obligor thereof is a Guarantor so long as (i) the stated maturity of such Acquired Debt shall be a date not earlier than six months after the stated maturity date of the Loans as of the date of issuanceis unsecured, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv));
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one such Acquired Debt is without recourse to the Borrower or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of any other Persons shall count against such limitationsSubsidiary (including any other Guarantor);
(j) Suretyship Liabilities Debt of the Borrower or a Subsidiary incurred pursuant to Permitted Receivables Transactions; provided, that constitute Investments the unpaid principal or equivalent amount thereunder shall not exceed an aggregate amount of $100,000,000150,000,000 at any time outstanding;
(k) secured Debt existing on the Closing Date evidenced by the Wood ▇▇▇▇ Mortgage Documents and the Debt evidenced by the Avborne IRB Documents;
(l) other secured Debt secured by any Lien permitted under Section 11.10 clauses (unless only permitted by clause k) or (bl) of Section 11.10)7.02;
(m) Debt of the Borrower consisting of the 7 ¼% Senior Notes due 2022, and Debt of any Restricted Subsidiary to Guarantee such Notes, provided that if such Notes are not called for redemption within 180 days after the Closing Date, such Restricted Subsidiary shall guarantee the Borrower’s Obligations under this Agreement pursuant to a Guaranty substantially identical to the Guaranty;
(n) other secured or unsecured Debt of the Borrower or any of its Restricted Subsidiaries in an aggregate unpaid principal amount not to exceed $30,000,000 at any time outstanding;
(o) other unsecured Debt incurred by the Borrower provided, that, immediately before and immediately after the incurrence of such Debt, no Event of Default or Default exists; and
(kp) other Debt, in addition unsecured Debt incurred by any Restricted Subsidiary to Guarantee Debt incurred by the Borrower as permitted by Section 7.01(o) provided that such Subsidiary also contemporaneously Guarantees the Borrower’s Obligations under this Agreement pursuant to a Guaranty substantially identical to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,000Guaranty.
Appears in 1 contract
Sources: Credit Agreement (Aar Corp)
Debt. Not, and not permit any other Loan Party Subsidiary to, create, incur, assume or suffer to exist any Debt, except:
: (ai) Obligations Debt hereunder; (ii) Debt existing on the Effective Date and listed on Item 10.8 ("Debt") of Schedule II (provided that all Debt listed under the heading "Debt to be Repaid" shall be paid in full on or prior to the Effective Date); (iii) Debt of the Company to any Subsidiary and of any Subsidiary to the Company or any other Subsidiary (provided that if any such Debt is evidenced by a promissory note, such note shall have been pledged to the Agent pursuant to the Security Agreement); (iv) Debt under Capital Leases to the extent permitted by Section 10.12; (v) Debt incurred in connection with Liens permitted by Section 10.9; (vi) (x) the 1996 Subordinated Notes and the 1998 Subordinated Notes and Suretyship Liabilities of Subsidiaries of the Company in respect of each thereof that are subordinated to the obligations of the Guarantors under the Guaranty in a manner satisfactory to the Agent and (y) other Subordinated Debt (provided, that the aggregate principal amount of Subordinated Acquisition Debt outstanding during the term of this Agreement and the other Loan Documents;
shall not exceed $10,000,000); (bvii) Debt incurred or assumed after the Closing Date which is secured by Liens permitted by Section 11.2(d), and extensions, renewals and refinancings thereof; provided, that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters;
(c) Debt of the Parent or Company to any Wholly-Owned Subsidiary or Debt of any Wholly-Owned Subsidiary to the Company, the Parent or another Wholly-Owned Subsidiary; provided that (i) the sum of (A) the aggregate principal amount outstanding of any such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been pledged to the Administrative Agent in accordance with the terms of the Guaranty and Pledge Agreement;
(d) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
(e) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased;
(f) Suretyship Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions Investments permitted by clauses (k) and (m) of Section 10.10; (viii) the Company and its Subsidiaries may guaranty obligations of their respective Subsidiaries arising under Section 11.4 contracts entered into in the ordinary course of business; (ix) the ▇▇▇▇▇▇ Note; and purchasers in connection with Dispositions permitted under Section 11.4;
(gx) up to $2,000,000 other Debt not exceeding in the aggregate of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitions;
(h) convertible Debt issued by Parent, so long as (i) the stated maturity of such Debt shall be a date not earlier than six months after the stated maturity date of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv));
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 (unless only permitted by clause (b) of Section 11.10); and
(k) other Debt, in addition to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,0005,000,000.
Appears in 1 contract
Debt. Not, and will not permit any other Loan Party Subsidiary to, create, incur, assume or suffer to exist any Debt, except:
(a) Obligations obligations under this Agreement and the other Loan Note Documents;
(b) Debt incurred or assumed after the Closing Date which is secured by Liens permitted by Section 11.2(d10.2(d), and extensions, renewals and refinancings thereof; provided, provided that the aggregate amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of $2,500,000, provided that the previous four Fiscal Quartersforegoing limit shall not include the Sale Leaseback if the Sale Leaseback is consummated in an arm’s-length manner on market terms and conditions;
(c) Debt of the Parent or Company to any domestic Wholly-Owned Subsidiary or Debt of any domestic Wholly-Owned Subsidiary to the Company, the Parent Company or another domestic Wholly-Owned Subsidiary; provided that (i) that, upon the sum reasonable request of (A) the aggregate principal amount outstanding of any Required Holders, such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been pledged Required Holders and the obligations under such demand note shall be subordinated to the Administrative Agent in accordance with the terms obligations of the Guaranty and Pledge AgreementCompany hereunder in a manner reasonably satisfactory to the Required Holders;
(d) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
Debt (eexcluding the Bank Debt) Debt described on Schedule 11.1 10.1(d) attached hereto, and any extension, renewal or refinancing thereof so long as the principal amount thereof is not increasedincreased in excess of the amount set forth on such Schedule 10.1(d);
(e) the Debt to be Repaid (so long as such Debt is repaid on the Amendment No. 1 Effective Date with the proceeds of the initial loans under the Bank Agreement);
(f) Suretyship Contingent Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions dispositions permitted under Section 11.410.5;
(g) up to $2,000,000 the Bank Debt, so long as each mandatory payment of principal and interest thereunder is timely made in accordance with the aggregate terms of (i) Acquired the Bank Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute AcquisitionsDocuments;
(h) convertible Debt issued by Parent, so long as (i) the stated maturity of such Debt shall be a date not earlier than six months after the stated maturity date of the Loans as of the date of issuance, (ii) no mandatory redemption requirements prior to maturity other than upon a Change of Control or pursuant to other customary event risk features, (iii) no Unmatured Event of Default or Event of Default shall have occurred and be continuing either immediately before or immediately after such issuance, after giving effect to the intended use of proceeds of such convertible Debt, with evidence that the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 Contingent Liabilities listed on the date of measurement, and (iv) the restrictive covenants and events of default relating to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv)Schedule 10.1(d);
(i) Suretyship Liabilities with Guaranties by the Company and/or its Subsidiaries in respect to (A) of Debt otherwise of the Company or its domestic Subsidiaries permitted under by this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such Debt of other Persons shall count against such limitations10.1;
(j) Suretyship Liabilities that constitute Investments permitted Hedging Obligations incurred in favor of the Bank Agent, any Bank Lender or any of their Affiliates for bona fide hedging purposes and not for speculation;
(k) Debt owing to any trust created under Section 11.10 (unless only permitted by clause (b) a supplemental executive retirement program of Section 11.10)the Company; and
(kl) other Debt, in addition Debt of the Company owing to the Debt listed above, in an aggregate outstanding amount not at any time exceeding $2,000,000Canadian Entity so long as such Canadian Entity remains a Wholly-Owned Subsidiary.
Appears in 1 contract
Sources: Note Purchase Agreement (Cpi Corp)
Debt. NotNo Credit Party shall, and not nor shall it permit any other Loan Party of its Restricted Subsidiaries to, create, assume, incur, assume or suffer to exist exist, or in any manner become liable, directly, indirectly, or contingently in respect of, any Debt other than the following (collectively, the “Permitted Debt, except:”):
(a) (i) the Obligations, and (ii) the Banking Services Obligations under this Agreement and subject, in the other Loan Documentscase of overdraft lines of credit for the benefit of Foreign Restricted Entities, to the limits in Section 6.1(j) below;
(b) Debt incurred or assumed after existing on the Closing Date which is secured by Liens permitted by Section 11.2(d), date hereof and set forth in Schedule 6.1 and extensions, refinancings, refundings, replacements and renewals of any such Debt subject to the last sentence of this Section 6.1;
(c) intercompany Debt incurred by (i) the Borrower and refinancings owing to any Domestic Restricted Subsidiary or (ii) any Domestic Restricted Subsidiary and owing to (x) the Borrower or (y) any Domestic Restricted Subsidiary; provided that, if such Domestic Restricted Subsidiary to whom such Debt under either subclause (i) or (ii) is owed is not a Guarantor, then such Debt shall be subordinated to the Obligations pursuant to terms substantially the same as the subordination terms applicable to the Guarantors pursuant to the Guaranty;
(d) (i) intercompany Debt incurred by any Foreign Restricted Subsidiary and owing to the Borrower or to any Wholly-Owned Domestic Restricted Subsidiary; provided that, (A) such Debt is evidenced by a note, (B) the Administrative Agent shall have an Acceptable Security Interest in such note and the receivable evidenced thereby, and (C) the aggregate outstanding principal amount of such Debt incurred by Foreign Restricted Subsidiaries which are not First Tier Foreign Restricted Subsidiaries, together with the aggregate amount of Investments in the form of Equity Interests made by the Restricted Entities in or to Foreign Restricted Subsidiaries permitted under Section 6.3(n), shall not exceed $450,000,000 at any time; and (ii) intercompany Debt incurred by any Foreign Restricted Subsidiary and owing to any other Foreign Restricted Subsidiary;
(e) intercompany Debt incurred by any Credit Party for general corporate purposes and owing to any Foreign Restricted Subsidiary; provided that, (i) such Debt shall be subordinated to the Obligations pursuant to terms substantially the same as the subordination terms applicable to the obligations owing to a Guarantor pursuant to the Guaranty and (ii) the aggregate outstanding principal amount of such Debt permitted under this clause (e) shall not exceed $50,000,000 at any time;
(f) purchase money Debt or Capital Lease obligations in an aggregate outstanding principal amount not to exceed $10,000,000 at any time;
(g) Hedging Arrangements permitted under Section 6.16;
(i) Debt arising from the endorsement of instruments for collection in the ordinary course of business and (ii) Debt incurred in the ordinary course of business under performance, surety and appeal bonds, government contracts, bids, statutory obligations, regulatory obligations and other obligations of a like nature;
(i) a guaranty of Debt so long as such underlying Debt is otherwise permitted under this Section 6.1; provided that, for the avoidance of doubt, such guaranty shall also be subject to the limitations of such underlying Debt;
(j) Debt incurred under overdraft lines of credit made available for the purpose of supporting the operations of any Foreign Restricted Entity in the United Kingdom, Canada, Singapore, Dubai or any other jurisdiction that is not a Sanctioned Entity; provided that, the aggregate outstanding principal amount of such Debt permitted under this clause (j) shall not exceed $30,000,000 at any time;
(k) unsecured Debt of the Borrower evidenced by bonds, debentures, notes or other similar instruments (including extensions, refinancings, refundings, replacements and renewals of thereof subject to the last sentence of this Section 6.1); provided that, (i) the scheduled maturity date of such Debt shall not be earlier than one year after the Revolving Maturity Date, (ii) such Debt shall not have any amortization or other requirement to purchase, redeem, retire, defease or otherwise make any payment in respect thereof, other than at scheduled maturity thereof and mandatory prepayments or puts triggered upon change in control, sale of all or substantially all assets and certain asset sales, in each case which are customary with respect to such type of Debt, (iii) the aggregate outstanding principal amount of all Debt permitted under this clause (k) shall not exceed $150,000,000 at any time, (iv) before and after giving effect thereto, the Total Net Leverage Ratio, determined on a Pro Forma Basis, shall be less than 4.50 to 1.00, and (v) the agreements and instruments governing such Debt shall not contain (A) (x) any financial maintenance covenants that are more restrictive than those in this Agreement, or (y) any other affirmative or negative covenants that are, taken as a whole, materially more restrictive than those set forth in this Agreement; provided that the inclusion of any covenant that is customary with respect to such type of Debt and that is not found in this Agreement shall not be deemed to be more restrictive for purposes of this clause (A), (B) any restriction on the ability of the Borrower or any of its Restricted Subsidiaries to amend, modify, restate or otherwise supplement this Agreement or the other Credit Documents, (C) any restrictions on the ability of any Subsidiary of the Borrower to guarantee the Secured Obligations (as such Secured Obligations may be amended, supplemented, modified, or amended and restated), provided that a requirement that any such Subsidiary also guarantee such Debt shall not be deemed to be a violation of this clause (C), (D) any restrictions on the ability of any Restricted Subsidiary or the Borrower to pledge assets as collateral security for the Secured Obligations (as such Secured Obligations may be amended, supplemented, modified, or amended and restated), or (E) any restrictions on the ability of any Restricted Subsidiary or the Borrower to incur Debt under this Agreement or any other Credit Document other than a restriction as to the outstanding principal amount of such Debt in excess of the aggregate Revolving Commitments in effect on the date of the initial issuance of such Debt (after giving effect to the application of the proceeds from such issuance);
(l) unsecured Debt in respect of redeemable preferred Equity Interests, provided that, the terms thereof shall not require any purchase, redemption, retirement, defeasance or other payment in respect thereof at any time prior to one year after the Revolving Maturity Date;
(m) Debt of any Restricted Entity that is not recourse to any other Restricted Entity and that is assumed by such Restricted Entity in connection with any Permitted Acquisition (or, if such Restricted Subsidiary is acquired as part of such Permitted Acquisition, Debt of such Restricted Subsidiary existing prior thereto that is not recourse to any other Restricted Entity other than another Restricted Entity that is acquired as part of the same Permitted Acquisition) and the refinancing and renewal thereof; provided, however, that (i) such Debt exists at the time of such Permitted Acquisition at least in the amounts assumed in connection therewith and is not drawn down, created or increased in contemplation of or in connection with such Permitted Acquisition, (ii) such Debt is not recourse to any Restricted Entity or any Property thereof prior to the date of such Permitted Acquisition, and (iii) the aggregate principal amount of all such Debt at any time outstanding shall not exceed two percent (2.0%) of Parent’s consolidated revenues as of the previous four Fiscal Quarters;
(c) Debt of the Parent or Company to any Wholly-Owned Subsidiary or Debt of any Wholly-Owned Subsidiary to the Company, the Parent or another Wholly-Owned Subsidiary; provided that (i) the sum of (A) the aggregate principal amount outstanding of any such Debt owed by a foreign Subsidiary and (B) the aggregate Investments made after the date hereof by the Company or any domestic Subsidiary to any foreign Subsidiary (excluding in each case Investments the proceeds of which are used exclusively to effect an Acquisition pursuant to Section 11.4 or to pay a Signing and Performance Bonus pursuant to Section 11.13this clause (m) shall not exceed $10,000,000, and (ii) any such Debt owed by a foreign Subsidiary shall be evidenced by a demand note in form and substance reasonably satisfactory to the Administrative Agent which has been pledged to the Administrative Agent in accordance with the terms of the Guaranty and Pledge Agreement;
(d) Hedging Obligations incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;
(en) Debt described on Schedule 11.1 and arising from the financing of insurance premium of any extension, renewal or refinancing thereof so long as the principal amount thereof is not increased;
(f) Suretyship Liabilities arising with respect to customary indemnification obligations in favor of sellers and assumptions of obligations (other than Acquired Debt) in connection with Acquisitions permitted under Section 11.4 and purchasers in connection with Dispositions permitted under Section 11.4;
(g) up to $2,000,000 in the aggregate of (i) Acquired Debt assumed in Acquisitions permitted under Section 11.4 and (ii) Debt secured by property acquired by a Loan Party and assumed by such Loan Party in transactions which do not constitute Acquisitions;
(h) convertible Debt issued by ParentRestricted Entity, so long as (i) the stated maturity of such Debt shall not be a date not earlier than six months after the stated maturity date in excess of the Loans as amount of the date unpaid cost of, and shall be incurred only to defer the cost of, such insurance for the underlying term of issuancesuch insurance policy, (ii) no mandatory redemption requirements prior to maturity other than any unpaid amount of such Debt is fully cancelled upon a Change termination of Control or pursuant to other customary event risk featuresthe underlying insurance policy, and (iii) no Unmatured Event the aggregate principal amount of Default or Event Debt at any time outstanding pursuant to this clause (n) shall not exceed $10,000,000;
(o) secured Debt in connection with letters of Default credit issued by any financial institution that is a Lender hereunder at the time of such issuance pursuant to a bilateral line of credit available for the account of any Credit Party, provided that the sum of (i) outstanding amounts drawn plus (ii) available amounts to be drawn under all such letters of credit issued under all such bilateral lines of credit shall have occurred not exceed $10,000,000 at any time;
(p) unsecured Debt in respect of Investments permitted by Section 6.3(e) and be continuing either immediately Section 6.3(o); and
(q) unsecured Debt not otherwise permitted under the preceding provisions of this Section 6.1; provided that (i) before or immediately after such issuance, and after giving effect to the intended use of proceeds of such convertible Debtcreation, with evidence that assumption or other incurrence thereof, the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 Total Net Leverage Ratio, determined on the date of measurementa Pro Forma Basis, and (iv) the restrictive covenants and events of default relating shall be less than 4.50 to such Debt are generally no more restrictive than those set forth in the Credit Agreement (it being understood and agreed that Debt that has (A) no financial covenants1.00, (B) no restrictive covenants with respect to incurrence, existence or making of liens, indebtedness or restricted payments and (C) dollar thresholds with respect to any events of default as a result of judgments and defaults under other indebtedness no lower than those provided for in this Agreement for such categories of defaults, will satisfy the requirements of this clause (iv));
(i) Suretyship Liabilities with respect to (A) Debt otherwise permitted under this Section 11.1, and (B) Debt of Persons other than Loan Parties that would be permitted under this Section 11.1 if such Person were a Loan Party, but only to the extent (i) within the limitations set forth in this Section 11.1 and (ii) that one or more Loan Parties derive, directly or indirectly, substantial business or finance benefits therefrom, and such the aggregate outstanding principal amount of Debt of other Persons shall count against such limitations;
(j) Suretyship Liabilities that constitute Investments permitted under Section 11.10 this clause (unless only q) shall not exceed $50,000,000 at any time. Any extensions, refinancings, refundings, replacements and renewals of Debt as permitted by clause above in clauses (b) of Section 11.10); and
and (k) other Debt, in addition of this Section 6.1 shall also be subject to the condition that any such Debt listed aboveincurred for the purpose of effecting such extension, refinancing, refunding, replacement or renewal shall be in an aggregate outstanding principal amount not at greater than the aggregate principal amount of the Debt being extended, refinanced, refunded, replaced or renewed, plus the amount necessary to pay all accrued (including, for the purposes of defeasance, future accrued) and unpaid interest thereon, the amount of any time exceeding $2,000,000premiums required to be paid thereon and reasonable fees and expenses associated therewith and an amount equal to any unutilized active commitment under the Debt being extended, refinanced, refunded, replaced or renewed.
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